After the harassment continued and worsened, she filed a charge with states that she feared that complaining about the harassment would cause her to lose her job. 84-1 ("acquiescence in sexual conduct at the workplace may not mean that the conduct is welcome to the individual"). In rejecting the plaintiff's claim of "hostile environment" harassment, the court found that any propositions or sexual remarks by co-workers were "prompted by her own sexual aggressiveness and her own sexually- explicit conversations" inadmissible but the trial court should carefully weigh its relevance against the potential for unfair prejudice. Any past conduct of the charging party that is offered to show "welcomeness" must relate to the alleged harasser. 1987), the Fourth Circuit held the district court wrongly concluded that the plaintiff's own past conduct and use of foul language showed that "she was the kind of person who could not be offended by such comments and therefore welcomed them generally, " even though she had told the harasser to leave her alone.
The relevance of whether the victim has complained varies depending upon "the nature of the sexual advances and the context in which the alleged incidents occurred." 29 C. The investigation into her charge discloses that her supervisor began making intermittent sexual advances to her in June, 1987, but she did not complain to management about the harassment. 1982), the plaintiff regularly used vulgar language, initiated sexually-oriented conversations with her co-workers, asked male employees about their marital sex lives and whether they engaged in extramarital affairs, and discussed her own sexual encounters. Although a charging party's use of sexual terms or off-color jokes may suggest that sexual comments by others in that situation were not unwelcome, more extreme and abusive or persistent comments or a physical assault will not be excused, nor would "quid pro quo" harassment be allowed.
If the investigation exhausts all possibilities for obtaining corroborative evidence, but finds none, the Commission may make a cause finding based solely on a reasoned decision to credit the charging party's testimony.
§ 1604.11(b), evaluating each situation on a case-by-case basis.Where appropriate the Commission will expand the case to include class claims.) alleges that her supervisor made unwelcome sexual advances toward her on frequent occasions while they were alone in his office. The resolution will depend on the credibility of her allegations versus that of her supervisor's.Corroborating, credible evidence will establish her claim. But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. Generally, victims are well-advised to assert their right to a workplace free from sexual harassment. Particularly when the alleged harasser may have some reason (e.g., prior consensual relationship) to believe that the advances will be welcomed, it is important for the victim to communicate that the conduct is unwelcome.Section 1604.11 of the Guidelines on Discrimination Because of Sex, 29 C. Thus it is crucial to clearly define sexual harassment: only unwelcome sexual conduct that is a term or condition of employment constitutes a violation. 1) - The plaintiff had alleged that her supervisor constantly subjected her to sexual harassment both during and after business hours, on and off the employer's premises; she alleged that he forced her to have sexual intercourse with him on numerous occasions, fondled her in front of other employees, followed her into the women's restroom and exposed himself to her, and even raped her on several occasions. Without resolving the conflicting testimony, the district court found that if a sexual relationship had existed between plaintiff and her supervisor, it was "a voluntary one...having nothing to do with her continued employment." The district court nonetheless went on to hold that the employer was not liable for its supervisor's actions because it had no notice of the alleged sexual harassment; although the employer had a policy against discrimination and an internal grievance procedure, the plaintiff had never lodged a complaint. But the Court held that the court of appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisory employees. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and made a living can be as demeaning and disconcerting as the harshest of racial epithets. The Commission's investigation also should search thoroughly for corroborative evidence of any nature. The 's Guidelines define two types of sexual harassment: "quid pro quo" and "hostile environment." The Guidelines provide that "unwelcome" sexual conduct constitutes sexual harassment when "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment," 29 C. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Therefore, "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. Even sexual conduct that occurs openly in the workplace may appear to be consensual. While a complaint or protest is helpful to charging party's case, it is not a necessary element of the claim. Because sexual attraction may often play a role in the day-to-day social exchange between employees, "the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected" sexual advances may well be difficult to discern. Thus, in investigating sexual harassment charges, it is important to develop detailed evidence of the circumstances and nature of any such complaints or protests, whether to the alleged harasser, higher management, co-workers or others.The corroborating witness testimony and her complaint to higher management would be sufficient to establish her claim.Her allegations would be further buttressed if other employees testified that the supervisor propositioned them as well.