Sexual harassment: dressing for a hostile environment.
Subject: Sexual harassment (Reports)
Author: Gross, Bruce
Pub Date: 09/22/2008
Publication: Name: Annals of the American Psychotherapy Association Publisher: American Psychotherapy Association Audience: Academic; Professional Format: Magazine/Journal Subject: Psychology and mental health Copyright: COPYRIGHT 2008 American Psychotherapy Association ISSN: 1535-4075
Issue: Date: Fall, 2008 Source Volume: 11 Source Issue: 3
Topic: Event Code: 540 Executive changes & profiles
Product: Product Code: 9918960 Sexual Harassment
Legal: Statute: Civil Rights Act of 1964
Accession Number: 187049621
Full Text: [ILLUSTRATION OMITTED]

Over the years, the dress code in the workplace has become acceptably relaxed, influenced largely by the clothing industry, and in particular, the Levi Strauss Corporation (Lilly, 2003; McPherson, 1997). In late 1992, the company had an independent study conducted regarding a reported trend toward casual dress in the workplace. Levi Strauss included the results in a newsletter that was sent to approximately 65,000 human resource managers in the largest companies in the United States, followed by their "Guide to Casual Business Wear."

Many corporations believe casual attire not only enhances morale, but also improves creativity, productivity, and communication (Kaplan-Leiserson, 2000; Gutierrez & Freese, 1999). Others believe that casual dress leads to an increase in employee "tardiness" and general absenteeism (Kaplan-Leiserson). In addition, they contend that relaxed dress results in relaxed attitudes and behaviors, which, in turn, result in lowered productivity (Dolbow, 2000; Goode, 2000).

Most of the research supporting both sides on the issue of casual dress has been based on anecdotal evidence, focusing almost exclusively on the impact of the employee's dress on his or her own productivity. Beyond the direct effect of the dress of the individual employee is the impact work dress has on co-workers and the working environment. The question arises as to whether dress style might constitute "sexual harassment" or contribute to what is referred to as a "hostile work environment."

The Ban on Hostility

In 1964, the United States Congress passed the Civil Rights Act, outlawing segregation and discrimination. Title VII of the Act prohibits employers from discriminating on the basis of race, color, national origin, religion, or sex. The Act also allowed for the creation of the Equal Employment Opportunity Commission (EEOC), which was specifically charged with enforcing Title VII. The EEOC is empowered to investigate, mediate, and file lawsuits on behalf of employees who file a complaint of discrimination.

While Title VII deals specifically with sex or gender discrimination, in 1980, the EEOC issued the "Guidelines on Discrimination Because of Sex" (Guidelines) in which they clarified that sexual harassment constitutes a form of gender discrimination, violating Section 703 of Title VII (EEOC, 1980; CFR, 1980). Within the Guidelines, the EEOC defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment."

The EEOC has identified two types of sexual harassment: "Quid pro quo" and "hostile work environment." Quid pro quo harassment occurs when it is suggested or implied that agreeing to (or refusing) unwanted sexual conduct with a given superior, or "supervisor," is the basis for decisions that will be made regarding the employee's future employment. According to the EEOC, a supervisor is anyone with the authority to make decisions that result in "tangible" change in the employee's employment status or is in a position to direct the employee's daily work responsibilities. A tangible change is defined as a significant change in the employee's status, such as being fired, demoted, given an undesirable reassignment, promoted, or any given any change in work assignment, benefits, or salary.

It is important to note that only unwanted or unwelcome sexual conduct constitutes sexual harassment or a violation of Section 703. In most situations, if an employee willingly engages in sexual conduct with a supervisor or co-worker, or uncomplainingly tolerates sexual advances and innuendo, the necessary criteria for filing a charge of sexual harassment will not be met. The same is true if the unwelcome sexual conduct does not affect the employment status of the employee. To be considered quid pro quo sexual harassment, accepting or acquiescing to the sexual conduct must be required for the employee to remain employed or to advance.

The second type of sexual harassment identified by the EEOC is referred to as the hostile work environment. In this type of harassment, the working environment becomes intimidating or offensive as a result of sexual looks, behaviors, photographs, comments, jokes, and/or threats. The hostility of the environment must be such that it unduly interferes with the victim-employee's work performance.

Offhand comments and inappropriate behavior that is not serious or extreme is not prohibited by federal law. Rather, in keeping with the EEOC's definition of sexual harassment, the given behavior(s) must not only be "unwelcome," but also "severe and pervasive" enough to create a hostile work environment. According to the EEOC, isolated incidents of sexual harassment do not violate federal law; that is, individual statements or behaviors may not be either severe or pervasive enough to create liability. Hostile work environments can be created by a single individual whose statements and/or behaviors are repeatedly offensive. On the other hand, the hostile environment can be created by many different employees, each of whom makes an offensive statement (or behavior) only once. As with quid pro quo sexual harassment, to meet the criteria for a hostile work environment, the behavior must be so offensive that it affects the ability of the victim-employee to do their job.

Victims and Offenders of Sexual Harassment

In 1990, under the direction of Clarence Thomas, the EEOC issued revised Guidelines that clarified the absence of gender restrictions in sexual harassment (EEOC, 1990). That is, the perpetrator and victim of sexual harassment can be of either sex, of opposite or the same sex. While it is comparatively rare for a male to file a complaint of harassment against a woman, it does occur, and with increasing frequency (EEOC, 2008). With the figure increasing annually since 1997, in 2007, 16% of all cases handled through the EEOC were filed by males.

Perpetrators of quid pro quo sexual harassment are, by definition, almost exclusively in a position of authority over the victim. However sexual harassment resulting in a hostile work environment may be perpetrated by a supervisor, co-worker(s), and/or a service provider, agent, or client of the employer. In addition to direct victims of the behavior, those persons who were subjected indirectly may have legitimate grounds to file suit under sexual harassment statutes, namely, under the "hostile work environment" provision. That is, the victim of sexual harassment may be anyone affected by the offensive conduct.

For example, in the 2005 case of Edna Miller et al. v. Department of Corrections, et al., the chief deputy warden of a California prison was involved in consensual sexual relationships with at least three of his subordinates. Yet it was two other female employees, Edna Miller and Frances Mackey (who died in 2003), who filed suit in June of 1999. They claimed that they had been negatively affected as a result of these affairs. In particular, they claimed to have been passed over for promotions and advancement as a result of the "unwarranted favorable treatment" Chief Deputy Warden Lewis Kuykendall gave to those women with whom he was involved.

Miller began working for the California Department of Corrections in 1983. It was in 1994 that she learned Kuykendall was having an affair with his secretary, Kathy Bibb. She also learned that he was having an affair with Associate Warden Debbie Patrick, who was vocally jealous of Kuykendall's affair with Bibb. Kuykendall was also having an affair with a third subordinate, Cagie Brown. Upon learning of these relationships, Miller met with Kuykendall's superior at the prison, Warden Tina Farmon in order to register a formal complaint regarding the "inappropriate situation" caused by the affairs. Farmon reportedly told Miller that she had already addressed the issue. Sometime later, Kuykendall was promoted to the position of warden at a different prison, the very institution to which Miller was transferred in February 1995.

Two months later, Miller happened to serve on an interview committee charged with evaluating Bibb's request for a promotion (to the position of correctional counselor) that would involve a transfer to Kuykendall's prison. When the committee members chose someone other than Bibb, Kuykendall apparently pressured them to select Bibb. Patrick (who had previously been transferred to the same prison) was openly vocal in her opposition of Bibb's promotion.

In July 1995, Miller and Brown (who had also been transferred to Kuykendall's prison) competed for a promotion within the facility. Brown informed Miller that Kuykendall would be "forced" to give her (Brown) the promotion as she could "take him down" as a result of their affair. Kuykendall put himself on the committee and the position was given to Brown, even though Miller had higher education and rank as well as greater experience. With atypical speed, Brown continued to be promoted to positions for which some said she was under-qualified.

In August 2001, the trial court dismissed the women's lawsuit. They held that "sexual favoritism" did not constitute sexual harassment or create a hostile work environment. The court based its opinion on the fact that the female employees were in no worse position than their male co-workers who had also been passed over for promotion. The Court of Appeals affirmed that decision.

In a unanimous decision, the California Supreme Court reversed the lower court's ruling. The Court held that Kuykendall's preferential treatment of Bibb and Brown constituted sexual harassment for "uninvolved" employees. The Court noted that an "isolated" incidence of favoritism toward the employee with whom the superior is having the affair generally does not constitute sexual harassment. However, if the sexual favoritism is sufficiently widespread, as in Miller, it may convey the message that employees are viewed by management as "sexual playthings," that employees must engage in sexual behavior with their supervisor or management in order to "get ahead."

Visualizing Sexual Harassment

In the context of sexual harassment, a hostile work environment can be created verbally, behaviorally, or visually. In each domain, the harassment can range from blatantly sexual to subtly suggestive. In terms of visual sexual harassment, case law has defined sexually suggestive as anything showing a person who is not "fully clothed" and "is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body." (See Robinson v. Jacksonville Shipyards, Inc, 760 F. Supp. 1486, 1542 ([M.D. Fla. 1991])

It should be common knowledge that pornography (whether photographic or cartoon, hard- or soft-core) can create a hostile work environment. What might be less well known is that fine art, too, can meet the criteria for sexual harassment. A commonly cited example occurred at Pennsylvania State University, when a professor complained that a print of Goya's "Naked Maja" that was hanging in a classroom constituted sexual harassment (Hentoff, 1991). To avoid possible litigation, the administration removed the artwork.

Visual images exist not only on paper but are also manifest in clothing. While the EEOC did not specify "provocative" dress as a form of sexual harassment, it definitely seems to fit the definition. This is especially so given the trend in women's clothing (including those marketed for work) towards shorter skirts, lower cut tops, bare legs, and tighter clothes all around. Exposed cleavage alone is undeniably sexually suggestive, leaves the wearer not fully clothed, and is specifically designed to display and draw attention to private parts of the body.

Suggestive or revealing dress by females in the workplace might be welcome by some and experienced as offensive by others. In an online survey conducted by an international job-hunting Web site, 47% of the males reported that they like women to dress provocatively at work, as compared to only 14.7% of the females (Qing, 2006). It is no longer considered sexist to acknowledge that men and women do not look at a women's dress style in the same way. While women may believe they're looking "stylish" in tight-fitting, cleavage-revealing clothes, men are apt to interpret suggestive dress style as an invitation. As with child sexual abuse (and certain other crimes), the intent of the "perpetrator" is irrelevant as compared to the impact on the "victim."

Recently in a California parking lot, a 28-year-old woman was sexually assaulted shortly after leaving work. With an MBA from a respected graduate program, "Jane" was employed as an administrative assistant in a mid-sized corporation. Described as "friendly" and somewhat "conservative," she reportedly performed her duties with diligence and competence. The perpetrator, "John," was one of "Jane's" co-workers. He admitted to the assault but placed responsibility on "Jane," blaming the provocative clothes she regularly wore, combined with her "overly-friendly" interpersonal style. As was typical for "Jane," on the day of the assault, she was fashionably dressed, wearing a belted brown cotton skirt that fell a few inches above her knees, a three-quarter length sleeve, patterned, stretch-to-fit "V-neck" shirt, brown pumps with three-inch heels, no nylons, and small hoop earrings.

Provocative dress does not legally mitigate sexual assault, but it most certainly may constitute sexual harassment. Whether or not they liked to see women dressed provocatively at work, a remarkable 90% of the over 4,000 online survey respondents believed that women who do so are "inviting" harassment (Qing, 2006). Certainly there are those men and women who find provocative dress distracting, repulsive, intimidating, and even "harassing." Pervasive suggestive dress may be sufficiently distracting or disturbing so as to decrease productivity and to create a hostile work environment.

Aside from possibly making the working environment uncomfortable for employees, suggestive attire at work may have negative consequences for those individuals so dressed. Very few studies look at consequences of sexy dressing, but a 2005 study out of Tulane University found a strong correlation between "sexy clothing" and "flirty behavior" and the professional advancement of female employees (Briefet al., 2005). The study looked at 164 female MBA graduates who, on average, were 43 years old and 12 years post degree. Each was asked to respond to 10 statements regarding their behavior at work.

The researchers found that women who wear short skirts, send flirtatious e-mail, crossed their legs provocatively, leaned over in a way that allowed others to see down their shirt, and/or massaged a male co-worker's shoulders at work are given fewer raises and promotions. Ironically, and surprisingly, just under 50% of respondents admitted that they had intentionally engaged in one or more sexualized behavior in order to advance their career. Women who never engaged in sexualized behavior(s) earned an average of three promotions and a salary in the 75-100 thousand dollar range as compared to two promotions and a salary of between 50 and 75 thousand dollars earned by the "flirters."

Another survey, developed by a staffing service that specializes in the placement of highly skilled administrative professionals, polled senior executives at some of the largest companies in the United States (Office Team, 2007). The executives were asked to what extent style of dress at work influences the chances of employees being promoted. Ninety-three percent (93%) of the respondents reported that an employee's chance for advancement is affected "significantly" (33%) or "somewhat" (60%) by their attire at work.

Employer Liability

As suggested, provocative dress in the workplace may limit the wearer's advancement. It may also lead to the development of hostile work environment for those co-workers who find such attire offensive. In response to a question regarding culpability, the respondents mentioned above who believed that wearing suggestive clothes to work was "inviting harassment," the vast majority felt employers were to blame.

Potentially, employees wearing suggestive attire could result in harassment charges being filed against the employer. Employers are liable for the effect the work environment--as created by all employees, individually and in aggregate--has on each and every employee. In accordance with Title VII, employers have a legal duty to ensure a "non-hostile" work environment, or what a "reasonable person'' would deem "non-hostile."

Although the federal government is clear in its prohibition, the states vary in their protections against sexual harassment, with some having no specific laws banning or punishing sexual harassment. Even within jurisdictions, courts seem to vary, that is, deciding cases with similar fact patterns differently. This is especially so in cases alleging a hostile work environment. This appears to be due to the difficulty in objectively defining the "unwelcome" and "severe or pervasive" elements of sexual harassment. How these aspects of harassment are defined can only be justly decided based on the facts of a given case.

Typically, in deciding a case, the trier of fact considers the frequency and severity of the alleged inappropriate behavior(s), the conduct of the alleged victim, and the context in which the alleged harassment took place. Consideration is also given to the size and nature of the employer's business, as well as whether a "reasonable person" in the same environment would have found it "hostile." Key to decision-making is whether the employer knew or should have known the harassing behavior was occurring and failed to act appropriately and effectively on that knowledge.

The consequences to employers for failing to maintain a non-hostile work environment can be significant. From a direct financial perspective, between 1997 and 2007, a total of $525.7 million was lost to settlements reached through the EEOC (this does not include settlement figures from those cases filed and resolved directly through civil litigation, rather than through the EEOC) (EEOC, 2008). During fiscal year 2007 (the most recent year for which data is available), the EEOC handled just over 12,500 cases involving complaints of sexual harassment, with all but approximately 900 resolved during 2007, and with the EEOC recovering $49.9 million in monetary benefits for the victim-employees. Other more intangible losses include increased absenteeism due to the harassment, loss of staff and expertise due to resignation, increased sick pay and health-care costs, increased conflict between co-workers, and decreased productivity.

Conclusion

Between 40-70% of women and 10-20% of men have experienced sexual harassment in the workplace, 43% by their supervisor (EEOC, 2008). As the EEOC does not outline or proscribe all possible sexually offensive behavior, and the legal definitions or boundaries are so unclear, employers should carefully develop and enforce clear and thorough company policies. Quite simply, companies should outline a code of employee conduct that outlines all behaviors the "reasonable person" would find offensive or sexually harassing. The level of professionalism expected from employees should be clarified as relates to their job description. A company's policy manual should include clearly stated (and enforced) consequences along with information regarding a formal complaint process. In addition to a non-fraternization policy, given today's fashion trends, appropriate work attire should be specified.

Business Casual?

Appropriate workplace attire may have been a cut-and-dried topic 30 years ago, but the times are changing. These areas are no longer black and white, and the influx of business casual dress proves even more difficult to decipher. Although workers in their 20s are more likely to be caught pushing the envelope, they may not even be aware of their "wrongdoings." Jennifer Cohen, a 24-year-old from Philadelpha, was pulled aside and told her capris and sleeveless shirts were not professional enough for the office, despite the business casual rules that were in place and the fact that she thought her dress was perfectly acceptable.

According to a 2006 survey by the Society for Human Resource Management, 6 out of 10 employers allow a dress-down clay at least one day per week. Casual dress can produce a more relaxed, creative environment, but repercussions arise in the form of those individuals taking casual dress to the extreme. Because fashion is largely an individual's choice, what one person thinks of as professional or appropriate may not be aligned with his or her co-worker. Many employers are cracking down by enforcing more detailed rules such as banning flip-flops, denim, or sleeveless blouses. Other employers simply ask their workers to use good judgment.

Armour, S. (2007, July 10). Business casual causes confusion. USA Today. Retrieved August 14, 2008, from http://www.usatoday.com/money/ workplace/2007-07-09-business-casual-attire_N.htm

References

Brief, A., Chan-Serafin, S., Bradley, J., & Watkins, M. (2005). Sex as a tool: Does utilizing sexuality at work work? A study presented during the symposium "Doing the Taboo: Studying Sexuality in the Workplace" presented at the August 2005 Academy of Management annual meeting in Honolulu.

Civil Rights Act of 1964. (Pub.L. 88-352, 78 Stat. 241, July 2, 1964).

Code of Federal Regulations (CFR). (1980). Title 29. (29 CFR 1604.11). Washington, D.C.: U.S. Government Printing Office.

Dolbow, S. (2000). Apparelers dress down casual-look instigators. Brandweek, 41(33), 10.

Edna Miller et al. Plaintiffs and Appellants v. Department of Corrections et al. Defendants and Respondents, 6 Cal. 4th 446; 115 P.3d 77; 30 Cal. Rptr. D 797 (2005 Cal.).

Equal Employment Opportunity Commission (EEOC). (1980). Guidelines on discrimination because of sex. 29 C.F.R. [section] 1604.11. Retrieved from http://www. access.gpo.gov/nara/cfrlwaisidx_00/29cff1604_00.html

Equal Employment Opportunity Commission (EEOC). (1990). Notice: Policy guidance on current issues of sexual harassment. (N-915-050). Retrieved from http:// www.eeoc.gov/policy/docs/currentissues.html

Equal Employment Opportunity Commission (EEOC). (2008). Sexual harassment charges EEOC & FEPAs combined: FY 1997-FY 2007. Retrieved from http://www.eeoc.gov/stats/harass.html

Goode, S. (2000). Clothes do make the man, after all. Insight on the News, 16(27), 4.

Gutierrez, T., & Freese, R. J. (1999). Dress-down days: Benefit or burden? CPA Journal, 69(4), 32-37.

Hentoff, N. (1991, December 27). Sexual harassment by Francisco Goya. Washington Post, A21.

Kaplan-Leiserson, E. (2000). Casual dress: Back-to-business attire. Training & Development, 54(11), 38-39.

Lilly, C. (2003). Casual dress craze affects businesses. Retrieved from www.ius.edu/publications/

McPherson, W. (1997). "Dressing down" in the business communication curriculum. Business Communications Quarterly, 60(1), 134-146.

Office Team. (2007). 'Clothing' in on the promotion: Attire affects potential for advancement. Retrieved from www.officeteam.com/portal/site/ot-us/menuitem. f641a8b96a6cc83772201cb202f3dfa0/.

Qing, M. (2006. September 7). Sexy clothes blamed for sexual harassment. China Daily, p. 3.

Bruce Gross, PhD, JD, MBA, FACFEI, DABPS, DABFE, DABFM, is a Fellow of the American Psychotherapy Association (ARA) and is a regular columnist for Annals of the American Psychotherapy Association. He has been a member of APA since 1999.
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