It's the Law

Thanks to an evolving body of case law, as well as public attention brought to the issue by high-profile episodes such as Anita Hill's sexual harassment allegations against Supreme Court Justice Clarence Thomas during his 1991 nomination hearings, today's victims are less likely to tolerate this kind of treatment. Policies against inappropriate sexual behavior are commonplace among employers. And these days, more people know their rights and are willing to go to the Equal Employment Opportunity Commission or court when they're violated.

That said, sexual harassment allegations are difficult to prove and hard to refute, because the legal threshold changes with each case. "Sexual harassment is always based on the perception of the recipient, never on the intent of the harasser," notes Shirley Everest, a training consultant with Resources & Strategies, based in Henrico, N.C. That means that one person's compliment may be another person's offensive remark.

"I'm sure all of us have been in situations where we've thought, 'Oh you jerk!'" says Susanne Marshall, member of the three-person Merit Systems Protection Board, which adjudicates cases involving disputed employment decisions, including those related to sexual harassment. "But would you file a claim against that person? Does it rise to that level? That's where each individual has to make their own call. It may be that they weren't as offended as somebody else might be."

There are two major types of sexual harassment:

In considering the merits of a case, courts apply a number of tests to weed out merely tasteless behavior from true harassment. They consider whether the gesture or comment was unwelcome and of a sexual nature. If it was, then they look at the severity and pervasiveness of the behavior. The more egregious the behavior, generally the less frequently it has to have occurred to be labeled sexual harassment.

Penalties for crossing the line can be steep. Employees who violate an agency's sexual harassment policy risk suspension, demotion and even losing their jobs. Although federal employees cannot be held personally liable for behavior that occurred during the course of their workday, the agencies that employ them can be. Sexual harassment victims suing the federal government are entitled to as much as $300,000 in compensatory damages.

Since fiscal 1994, federal sector sexual harassment complaints filed each year with the Equal Employment Opportunity Commission have held steady at about 1,500 cases-between 2 and 3 percent of all federal sector discrimination suits filed at EEOC, an independent agency that resolves private-sector and government discrimination disputes. These numbers underestimate the problem for agencies, though. It only takes one egregious case to bring on the congressional spotlight, a public relations nightmare and a serious blow to employee morale-as the Veterans Affairs Department learned with its 1997 controversy involving Jerome Calhoun.

Looking only at formal complaints also misses the much broader problem of offensive behavior that never gets reported. Across government, 44 percent of women and 19 percent of men have experienced some type of unwanted sexual attention on the job, according to a 1994 survey and study by the Merit Systems Protection Board called "Sexual Harassment in the Federal Workplace," the most recent governmentwide analysis. Those numbers were almost the same as ones from a 1987 MSPB report on the same topic, suggesting that they likely remain relevant today, board sources say.

But while sexual harassment is still prevalent in the workplace, public tolerance has dwindled. That same Defense Department employee who was afraid to speak her mind when subjected to unwanted kisses and hugs back in the early 1980s today laughs at her reaction then. "I know I wouldn't put up with it now," she says. "I probably would deck someone if I were groped today."