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Sexual Harassment and Vague Definitions—How Arbitration Can Clear the Confusion

Tuesday, November, 6, 2012


Sexual harassment arbitration is a confidential way to deal with an otherwise embarrassing and private issue in the workplace.  With arbitration, sexual harassment cases can be dealt with quickly and substantively, allowing business that has been interrupted to continue as usual.  Since sexual harassment is often a situation where there have been misinterpretations and misconstrued invitations for sexual advances, it is important that the party being accused of sexual harassment have the opportunity to understand the weight of his or her actions and words in the context of the workplace. 


Sexual harassment is a relatively new term in employee relations.  In the case of Meritor Savings Bank vs. Vinson in 1986, the Supreme Court ruled that sexual harassment is in violation of Title VII of the Civil Rights Act.  Since that momentous ruling, it has been made clear that the law in America protects workers and guarantees that they do not have to tolerate or turn a blind eye to overt sexual advances and abuses in the workplace. 


While the term “sexual harassment" was not part of the language spoken in judicial or arbitration literature before the mid-1970s, it is a term that is commonly referred to in employee and labor relations.  However, the most significant issue with the term was that it was loosely defined until the Equal Employment Opportunity Commission’s (EEOC) 1980 sexual harassment guidelines were published.  In such, sexual harassment was defined within the construct of three terms:


  1. Respect—All employees are entitled to dignity and respect on the job and should not have to suffer any kind of sexual indignity. 
  2. Unwelcomeness—Sexual harassment is sexual advance that is unwelcome to the recipient. 
  3. Context—Context must be considered in order for determination of unwelcome advances to occur. 


The EEOC, when applying these definitions of sexual harassment, places cases of sexual harassment into two broad categories: 1) Quid pro quo, in which there are demands for sexual favors in exchange for employment opportunities or benefits; and 2) Hostile working environment, in which the sexual advances create an unsatisfactory and hostile environment for the employee.