Sexual Harassment
John Hasnas
Is the abuse of one’s position of authority over an employee in order to exact sexual favors from the employee or to discomfort or humiliate the employee because of his or her sex. ‘‘Sexual harassment’’ is a term with both a legal and a moral meaning, which, although related, are not identical. The tendency to conflate these meanings has been the source of much confusion and indicates the need to clearly distinguish between the term’s legal and moral applications.
Legally speaking, sexual harassment is a form of sex discrimination. This is because, although the federal government is empowered by the Civil Rights Act of 1964 to prohibit employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin, it possesses no statutory authority to directly regulate interpersonal relationships in the workplace. Therefore, the only forms of sexual harassment that are legally actionable are those that discriminate against an employee because of his or her sex.
There are two distinct types of legally prohibited sexual harassment: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment occurs when an individual’s employment opportunities are conditioned upon his or her entering into a sexual or social relationship with an employer (i.e., when the opportunities are given or withheld as the quid pro quo for the relationship). Quid pro quo harassment may consist in either threats of adverse employment consequences if one does not enter the relationship, or offers of advancement if one does. It should be noted that such threats or offers must be directed toward the employee because of the employee’s sex. If they are equally directed toward individuals of both sexes, as they might be by a bisexual supervisor, they would not constitute legally actionable sexual harassment because they would not be discriminatory in nature.
Hostile environment harassment occurs when an employer engages in conduct that has the purpose or effect of creating a working environment that is intimidating, hostile, or offensive to the members of one sex. Hostile environment harassment consists in unwelcome behavior of a sexual nature that is sufficiently distressing to interfere with an individual’s ability to perform his or her job, even when the behavior is not designed to elicit sexual favors. Such behavior must be severe and pervasive enough to alter the conditions of the victim’s employment and may not consist in merely a few isolated incidents. Once again, the behavior must have a sexually discriminatory effect. General intimidating or offensive behavior (i.e., behavior that would be intimidating or offensive to all employees regardless of their sex) does not constitute legally actionable sexual harassment. It should be noted that unlike quid pro quo harassment which requires intentional conduct, hostile environment harassment may consist in any course of action, intentional or not, that has the effect of creating a hostile working environment.
Morally speaking, sexual harassment consists in intimidating conduct directed toward individuals in subordinate employment positions by those with power over them for the purpose of exacting sexual favors that would not otherwise be granted (May and Hughes, 1987). This definition could reasonably be extended to include intimidating conduct that is designed to belittle or denigrate an employee because of his or her sex. From the moral perspective, sexual harassment is an abuse of power in the employment relationship, and as such, is objectionable primarily because of its oppressive, rather than discriminatory, nature. Thus, the actions of a bisexual harasser would constitute morally objectionable sexual harassment, even though they would not be legally actionable. Further, isolated instances of oppressive, sexually degrading conduct that would be inadequate to make out a legal case of hostile environment harassment could still constitute morally objectionable sexual harassment. However, because the evil of sexual harassment is its oppressive nature, and because oppression requires intention, there can be no negligent or inadvertent sexual harassment in the moral sense. Unlike legal sexual harassment, conduct that unintentionally creates an offensive working environment for the members of one sex would not lie within the moral significance of the term.
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