Title: Ambient Harassment under Title Vii: Reconsidering the Workplace Environment
Abstract: Marcia Hocevar's manager, Timothy Amundsen, brought pornographic material to work and shared it with others at meetings.1 He threatened female employees with violence and constantly called them fucking bitches, and fat flicking bitches.2 He told dirty jokes, including jokes that were demeaning to women.3 Amundsen also used profanity in the presence of male employees. For instance, he called a new male employee the fucking new guy.4 He played a sexually inappropriate tape at a meeting where both male and female employees were present.5 The court reasoned that since Amundsen was boorish and unprofessional to both male and female employees, his harassment of Ms. Hocevar was not of sex.6 INTRODUCTION The Equal Employment Opportunity Commission (EEOC) states that sexual harassment is any 'Verbal or physical conduct of a sexual nature . . . [that] explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.7 Marcia Hocevar said that, as a result of the harassment she faced at work, she suffered fear, depression, anxiety and self-doubt, and had to be treated with Prozac.8 Yet under the current legal framework, the court found that these conditions did not violate Title VII's prohibition on harassment9 because she was not targeted as an individual of sex.10 This Comment examines whether a legally cognizable claim of hostile environment sexual harassment under Title VII can stem solely from indirect environmental conditions, which I call harassment,11 and concludes that under the analysis, it can. The defining feature of ambient harassment is that it is not clearly targeted at any individual or group of individuals in the workplace. In some instances there is no visible target (for example, pornography displayed in a common area), while in other instances everyone in the workplace is targeted but no one is singled out (for example, by sexually abusive language), which is sometimes referred to as equal opportunity Ambient harassment includes pornographic images in the office (for example, on coworkers' computers, printouts posted in common areas, or printouts in the offices of superiors), abstract discussions of proper gender roles, derogatory statements made about one gender, and sexually charged language used with reference to nonemployees.12 These sorts of behaviors and conditions were once frequently cited by judges as evidence of a hostile environment.13 However, in Oncale v. Sundowner Offshore Services, Inc.,14 the Supreme Court articulated a test for harassment that focused on the of sex requirement in Title VII, which, if followed, would make ambient harassment legally irrelevant.15 This Comment attempts to reconcile the expectation created by Title VII that a workplace should be welcoming to both genders with the reality of the legal doctrine by proposing a workable model for evaluating actionable sexual harassment claims based on ambient harassment. This model focuses the of sex question on the messages sent by ambient harassment. Specifically, if the ambient harassment carries invidious sexual stereotyping, gender-based animus, or messages of gender subordination, a court should find it to be harassment of sex. Under this proposal, a successful claim of hostile environment sexual harassment may be premised entirely or in part on ambient harassment, so long as that harassment is sufficiently pervasive to meet Title VII's requirement.16 Part I of this Comment explains the damaging impact that ambient harassment has on women in the workplace.17 Part II outlines the statutory basis for a hostile environment sexual harassment claim. It focuses specifically on Title VII of the 1964 Civil Rights Act, which forms the statutory basis for the claim, and the 1991 amendments to the Act, which form the basis for monetary remedies for harassment. …
Publication Year: 2008
Publication Date: 2008-01-01
Language: en
Type: article
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Cited By Count: 3
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