Workplace Sexual Harassment Law: When Did It Begin?

Sexual harassment in the workplace has been considered a form of discrimination on the basis of sex in the United States since the mid-1970s. However, the groundwork for establishing federal sexual harassment laws was laid out by the Civil Rights Act of 1964, which prohibited employment discrimination based on race, sex, colour, national origin, or religion. The Act was passed by Congress and signed into law by President Lyndon B. Johnson. While the Act did not initially include sexual harassment in its legislation, it established the legal foundation for preventing it.

The Civil Rights Act of 1964

The Act outlawed segregation in businesses such as theatres, restaurants, and hotels, and banned discriminatory practices in employment, ending segregation in public places such as swimming pools, libraries, and public schools. It also provided for the integration of schools and other public facilities.

The Act made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin. Although sexual harassment is a form of sex discrimination, it took many years for U.S. courts and legislation to define it and create laws that would protect workers. The groundwork for establishing federal sexual harassment laws and eventually making sexual harassment illegal in the workplace was laid by the Civil Rights Act of 1964.

The first sexual harassment cases were brought in the mid-1970s, and it wasn't until a decade later that the U.S. Supreme Court heard a sexual harassment case.

Quid pro quo sexual harassment

In the United States, the Civil Rights Act of 1964 laid the groundwork for federal sexual harassment laws and made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin. However, it was not until the mid-1970s that sexual harassment in the workplace was recognised as a form of sex discrimination.

To prove quid pro quo sexual harassment, employees must typically be able to demonstrate the following:

• They are a member of a protected class, which means that federal law expressly protects them from workplace discrimination based on sex.
• They were the target of unwelcome sexual advances from another employee, usually a supervisor or company officer.
• The harassment was sexually motivated by the harasser.
• Their reaction to the sexual advances negatively impacted some aspect of their employment, such as compensation, promotion, or demotion.
• The employer is liable for the harassment under the legal principle of respondeat superior, meaning the alleged harasser had authority over the employee or influenced the terms and conditions of their employment.

Companies can take several steps to prevent quid pro quo sexual harassment, including implementing clear policies prohibiting sexual harassment and retaliation, developing complaint procedures, providing employee training, and fostering a culture of strong disapproval of such conduct.

Hostile work environment

In the United States, workplace sexual harassment has been considered a form of discrimination on the basis of sex since the mid-1970s. The Civil Rights Act of 1964 laid the groundwork for establishing federal sexual harassment laws and making sexual harassment in the workplace illegal. The Act made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin.

The Equal Employment Opportunity Commission (EEOC) defines hostile work environment sexual harassment as situations where an employee's work environment is made intimidating, hostile, or offensive due to unwelcome sexual conduct. This conduct must also unreasonably interfere with the employee's work performance.

• Unwanted sexual advances by a fellow employee
• Offensive sexual comments or jokes
• Discussions about sex
• Display of sexually oriented photos or cartoons

It is important to note that hostile work environment sexual harassment does not have to involve sexual advances. Additionally, the victim and harasser can be of any gender and do not have to be of the opposite sex.

The EEOC has established that employers are responsible for taking reasonable steps to stop harassing behaviour or face legal liability. Employers can be held liable for sexual harassment committed by their employees, whether or not the employee is in a supervisory position.

To prove hostile work environment sexual harassment, it must be shown that the conduct was unwelcome and that it interfered with the employee's ability to work. The courts will consider whether the conduct was "serious" and "frequent".

In summary, hostile work environment sexual harassment is a serious issue that can have significant legal consequences for employers and employees alike. It is important for employers to establish policies and procedures to prevent and address sexual harassment in the workplace.

Third-party sexual harassment

In the United States, the Civil Rights Act of 1964 laid the foundation for federal sexual harassment laws and eventually made sexual harassment in the workplace illegal. The Act made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin. Although sexual harassment is a form of sex discrimination, it took several years for U.S. courts and legislation to define it and create laws that would protect workers.

A hostile work environment is a more likely scenario for third-party sexual harassment. To prove a third-party sexual harassment claim based on a hostile working environment, the victim must show that they were an employee at the defendant's company, they were subjected to unwanted harassing conduct from a third party because of their sex, the harassing conduct was either severe or pervasive, they found the working environment hostile or abusive, a reasonable and similar employee would have found the working environment to be abusive or hostile, the employer knew or should have known about the harassing conduct but did not take immediate and appropriate action to fix it, and the victim was harmed by the harassing conduct.

Employers have a legal duty to take immediate and appropriate action to investigate the harassment allegations and prevent further harassment. If they fail to do so, they can be held liable for sexual harassment. The amount of control that the employer has over the third party will matter. If the employer could have easily stopped the harassment but took no remedial action, a court may find that there was employer liability.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

In the United States, the groundwork for establishing federal sexual harassment laws was laid by the Civil Rights Act of 1964, which was passed by Congress and signed into law by President Lyndon B. Johnson. This Act made it illegal to discriminate on the basis of race, colour, religion, sex, or national origin.

The Ending Forced Arbitration Act voids predispute arbitration clauses in cases involving sexual-misconduct allegations. It is the first major amendment in the 100-year history of the Federal Arbitration Act and has been described as a "milestone in the #MeToo movement".

The Act specifies that the enforceability of predispute arbitration provisions and class- or collective-action waivers is "at the election of the person alleging conduct constituting a sexual harassment dispute or a sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct". In other words, such agreements are not per se invalid, but the party bringing sexual assault or sexual harassment claims can elect to avoid them.

The Ending Forced Arbitration Act also gives the court, not an arbitrator, the power to determine the validity and enforceability of an agreement requiring arbitration of sexual harassment and sexual assault claims, and the power to determine whether the Act applies.

The Act is effective immediately and applies to arbitration and class- and collective-action waiver agreements entered into by employees before its effective date.

Frequently asked questions