By Mary Jo Frank
The U.S. Supreme Court’s recent decision in the Harris v. Forklift Systems Inc. sexual harassment case reaffirms the position taken by the University and many others that sexually abusive, hostile work environments are illegal and constitute sexual harassment.
General Counsel Elsa K. Cole says the U-M’s Faculty/Staff Sexual Harassment Policy, in place since 1991, fares well when examined in light of the decision.
“The University’s need to enforce vigorously its policy against sexual harassment is well supported by this court decision. The court opinion endorses the approach taken by the University’s policy and deflects criticism of its necessarily broad and encompassing terms,” Cole added.
The University’s policy subjects to discipline faculty or staff who engage in:
“Sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature … when … such conduct has the purpose or effect of unreasonably interfering with an individual’s employment or educational performance or creating an intimidating, hostile, or offensive environment for that individual’s employment, education, living environment, or participation in a University activity.”
The Supreme Court agrees that such conduct is illegal sexual harassment. It said that if a reasonable person would find such behavior sufficiently severe or pervasive as to alter the conditions of the employee’s workplace and create an abusive environment, and if the aggrieved individual perceived the atmosphere to be abusive, sexual harassment has occurred, Cole says.
Writing the majority opinion, Justice Sandra Day O’Connor noted that determining what constitutes an abusive work environment cannot be a mathematically precise test.
She also said “so long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, there is no need for it also to be psychologically injurious.”
In a concurring opinion, Justice Antonin Scalia commented that although the decision doesn’t offer a very clear standard, “I know of no test more faithful to the inherently vague statutory language than the one the court today adopts.”
Because the University’s policy has been criticized for vagueness, Cole says, these comments by the justices are particularly welcome. “It is helpful to know that such vagueness is unavoidable and does not affect the policy’s enforceability.”
Cole also is pleased that the Supreme Court used the same approach as the University in determining whether sexual harassment has occurred: the totality of the circumstances must be considered.
O’Connor said that there is no single fact or circumstance that must be present to find abusive workplace harassment. Rather, all the surrounding circumstances must be looked at. These include: the frequency of the conduct, its severity, whether it is physically threatening or humiliating and not just an offensive utterance, whether it unreasonably interferes with an employee’s work performance, and the effect on the employee’s psychological well-being.
The University’s policy describes a similar list of factors.
The Supreme Court decision reversed a U.S. Court of Appeals for the Sixth Circuit decision that had thrown out a Tennessee woman’s lawsuit because she had failed to prove that her supervisor’s sexually suggestive comments had caused her “severe psychological injury.”
Because Michigan is within the Sixth Circuit, the decision to strike down the “severe psychological injury” test is particularly important for future cases, Cole added.
The only modification of the University’s policy necessitated by the ruling is a change in the standard used to find sexual harassment from “a reasonable person of the same gender and Univer-sity status” to a “reasonable person.”
In keeping with the wording of O’Connor’s opinion, Cole also is suggesting that the University change its definition of a hostile working environment from “conduct [that creates] … an intimidating, hostile or offensive environment” to “conduct [that creates] … an intimidating, hostile or abusive environment.”
