[Congressional Record Volume 144, Number 74 (Wednesday, June 10, 1998)]
[Extensions of Remarks]
[Pages E1081-E1082]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           SEXUAL HARASSMENT

                                 ______
                                 

                          HON. LEE H. HAMILTON

                               of indiana

                    in the house of representatives

                        Wednesday, June 10, 1998

  Mr. HAMILTON. Mr. Speaker, I would like to insert my Washington 
Report for Wednesday,

[[Page E1082]]

May 27, 1998 into the Congressional Record.

                           Sexual Harassment

       When I came to Congress in the 1960s, women were beginning 
     to define the feminist movement and to provide their own 
     answers to the question, ``What do women want?'' Women have 
     since advanced in all areas of American life, from Little 
     Leagues including girls, to the military academies admitting 
     women, to women serving in greater numbers in the highest 
     ranks of government and business. Women have also helped 
     shape public policy on a number of fronts, including 
     workplace laws barring sex discrimination and promoting equal 
     pay as well as laws providing for family and medical leave 
     and gender equity in education.
       Recent events, including the Paula Jones suit, the Clarence 
     Thomas-Anita Hill hearings, and the sex scandals in the 
     military, are focusing public interest on sexual harassment 
     in the workplace. Sexual harassment claims have increased as 
     more women have entered the workforce and the issue has 
     gained greater attention. The number of sexual harassment 
     complaints filed with the Equal Employment Opportunity 
     Commission (EEOC), the federal agency responsible for 
     enforcing discrimination law, increased from 6,800 in 1990 to 
     nearly 16,000 cases in 1997.
       What precisely constitutes sexual harassment, however, 
     continues to be a vexing question. There are few established 
     guidelines for employers and employees in this area, and the 
     relevant federal laws do not even include the words ``sexual 
     harassment.'' The vague nature of current law and the 
     increase in cases before the courts have added pressure on 
     the legislative and judicial branches to clarify the law in 
     this area.
       Overview: The Civil Rights Act of 1964 is the primary law 
     addressing sexual harassment. Title VII of this law does not 
     specifically mention sexual harassment, but makes it unlawful 
     for employers with 15 or more employees to discriminate 
     against any applicant or employee on the basis of sex. The 
     law implies that when a supervisor sexually harasses a 
     subordinate because of the subordinate's sex, that supervisor 
     discriminates on the basis of sex.
       The EEOC will generally enforce Title VII claims in the 
     following manner: Upon receiving a complaint from an 
     employee, the EEOC investigates the case and renders a 
     decision on whether there is reasonable cause to believe that 
     discrimination has occurred. If the EEOC substantiates the 
     charge but is unable to reach an acceptable conciliation 
     agreement between the employer and employee, then the EEOC 
     will issue a right to sue letter on behalf of the employee. 
     If an employee chooses to file a private lawsuit under Title 
     VII, the employee must begin with filing a charge with the 
     EEOC.
       Sexual harassment cases are generally divided into two 
     basic categories, ``quid pro quo'' and ``hostile working 
     environment'' harassment. Traditional quid pro quo harassment 
     takes place when an employee suffers tangible harm--the loss 
     of a job, promotion, income or benefits--because the employee 
     has resisted sexual advances. Recently, the legal definition 
     of sexual harassment has been expanded to include hostile 
     working environment harassment. Hostile working environment 
     harassment is defined as an ``intimidating, hostile, or 
     offensive environment'' or an environment which unreasonably 
     interferes with an individual's work performance.
       Unresolved Areas: The federal courts are now wrestling with 
     a range of issues in this area of the law.
       Defining quid pro quo: The Supreme Court is considering 
     whether a worker has a legitimate quid pro quo case if the 
     employee neither submitted to the employer nor suffered any 
     tangible detriment for saying no. The employee in the pending 
     case alleges her supervisor made sexually lewd comments 
     throughout her employment, including specific remarks 
     implying her job was on the line if she did not comply with 
     his advances, but the employee never suffered adverse 
     consequences for not complying. The Supreme Court's decision 
     on this case could potentially lower the threshold for what 
     constitutes legitimate quid pro quo harassment, and could 
     directly impact cases pending in federal court, most notably 
     the Jones case.
       Defining hostile work environment: In moving a hostile work 
     environment claim, the employee is required to show that the 
     supervisor's conduct was so severe or pervasive that it 
     created a hostile work environment. Federal courts have split 
     on the question of whether an employee must prove not only 
     that the conduct complained of would have offended a 
     reasonable victim, but also that she suffered serious 
     psychological injury as a result of the conduct. The Supreme 
     Court attempted to clarify the matter in 1993, concluding 
     that a victim of sexual harassment need not experience a 
     ``nervous breakdown'' for the law to come into play. But as 
     the Jones case demonstrated, the issue continues to be hotly 
     debated.
       Employer liability: A third issue is whether and when 
     employers are liable for the actions of their employees. Most 
     courts usually hold employers responsible for quid pro quo 
     sexual harassment by supervisors, but employers are not 
     automatically liable for a hostile environment created by 
     supervisors or co-employees. In a hostile environment case, 
     the employee must show that the employer's knew or should 
     have known about the harassment.
       Same-sex harassment: A fourth issue is whether sexual 
     harassment can occur between an employer and employee of the 
     same sex. The Supreme Court ruled this year that the law does 
     allow for same-sex claims.
       Conclusion: What impresses me about this issue is how much 
     difficulty we have had sorting out relations between men and 
     women in the workplace, how much confusion exists between the 
     genders, and how vague and imprecise the law is in this area, 
     even after three decades of evolution. It will not be easy 
     for Congress or the courts to solve this age-old problem. We 
     must, of course, keep trying for better laws and equal 
     treatment, but men's and women's relationships have always 
     been--and will remain--extremely complicated and filled with 
     ambiguities.
       The confusion and uncertainties of the sexual harassment 
     laws create wasteful litigation and disruption in the 
     workplace. Employers and employees may not know what is legal 
     and what is not. A vague law makes justice depend on which 
     judge or jury is deciding any particular case. It is time for 
     Congress or the Supreme Court to clarify the law. With 
     current cases pending, it is more likely the Court will speak 
     first.

     

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