This file was prepared for electronic distribution by the inforM staff. Questions or comments should be directed to inform-editor@umail.umd.edu. Chapter 3 DEFINITIONS OF SEXUAL HARASSMENT The Task Force has been frequently asked the question: what is the exact definition of sexual harassment? While sexual harassment is not a new problem in workplaces and schools, it is only recently that our society has focused attention on the question of its definition. After significant exploration of this issue, the Task Force has concluded that there is no single definition that can encompass all aspects of sexual harassment, accurately represent the different perspectives created by the unique ways in which different individuals experience sexual harassment, and satisfy an the purposes for which we need and use definitions. While sexual harassment is not amenable to a precise or compact definition, the basic concept of sexual harassment is not difficult to describe or understand. Common sense suggests that the word "harassment" is the key to defining sexual harassment and to distinguishing it from other types of sexual interactions. According to the Oxford English Dictionary, the word harass comes from the ancient French word "harer" which means "to set a dog on." Another dictionary defines harass as: "(1) to disturb or irritate persistently; (2) to wear out; exhaust; (3) to enervate (an enemy) by repeated raids."' Synonyms for harass include: bully, intimidate, threaten, belittle, badger, irritate, disturb, taunt, persecute, annoy, oppress, pester, humiliate, and degrade. Therefore, when sexual conduct, such as words, physical contact or the display of sexually-explicit materials, is used in a workplace or an educational institution to bully, intimidate or for other similar negative and aggressive purposes, the behavior constitutes sexual harassment. Whether the behavior is harassing is not judged based on the intent of the actor, but instead, from the perspective of the target or victim of the conduct. This common sense approach should serve as a starting point for the development of meaningful definitions of sexual harassment. The existing definitions of sexual harassment come from a number of sources. Two of the principal sources are the law and academic research, each of which serves different purposes. Legal definitions define what behavior is actionable under the law. Academic definitions are devised to provide an in-depth understanding of a problem and to develop policy-based solutions for it. A third source of definitions is educators and workplace trainers, who have developed definitions of sexual harassment for training purposes. As a result of their different purposes, legal definitions tend to be different from those that are most effective for communicating to workers, students and faculty about the behavior that constitute prohibited sexual harassment. Academic definitions also may not be easily understood by persons outside of the relevant field of academic study. As the following description of a number of existing definitions demonstrates, they range from the long, precise and complex, to the short, general and simple. Despite the many differences in the existing definitions of sexual harassment, the behaviors that can constitute sexual harassment are fairly well defined and consistent for all groups and individuals. The so-called gray area, which is comprised of those types of conduct that may or may not constitute sexual harassment is, in reality, quite small. Many recent studies and surveys show significant levels of agreement between women and men as to which behaviors constitute sexual harassment and which do not. (2) Thus, while the definitions of sexual harassment are still evolving through judicial interpretation, academic research and popular discussion of the issue, the broad definitional outline of sexual harassment already is clearly established and generally understood. LEGAL DEFINITIONS In the law, sexual harassment in employment is recognized as a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964. In 1980, the Equal Employment Opportunity Commission (EEOC) defined sexual harassment as: unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to, or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. (3) Sections 1 and 2 of the definition describe the quid pro quo type of harassment. These claims involve harassment in which a supervisory employee demands sexual favors in exchange for job benefits over which that supervisor has some control or influence. Section 3 describes the hostile work environment form of sexual harassment, which is not defined by supervisory or non-supervisory status, but can be caused.by anyone in a workplace. One objection to the standard in the EEOC guideline that has been articulated to the Task Force is the requirement that the sexual conduct have the effect of "unreasonably interfering" with the individual's work performance. Many participants at Task Force hearings and meetings stated that standard should instead preclude the imposition of any unwanted sexual behavior. As it is now written, the definition permits a certain amount of unwanted sexual behavior to occur without sanction. Unwanted sexual conduct is prohibited only when it rises to an "unreasonable" level. The Center for Women in Government, a university-based research and advocacy organization that has been a pioneer in the field of sexual harassment prevention training for New York State government employees, has restated the EEOC definition of workplace sexual harassment for purposes of employee training as follows: Any unwanted verbal or physical advance, sexually explicit derogatory statement or sexually discriminatory remark made by someone in the workplace which is offensive or objectionable to the recipient or which causes the recipient discomfort or humiliation or which interferes with the recipient's job performance. (4) As the National Organization for Women Legal Defense and Education Fund, Inc., a legal advocacy organization on issues of concern to women, has noted: Sexual harassment encompasses a broad range of unwelcome acts that focus on women's sexuality, rather than on their contributions as employees. Sexual harassment also includes harassment, not sexual in nature, that would not occur but for the sex of the employee...[and also] encompasses the full range of coercive behavior from subtle psychological force to gross physical abuse. (5) Title IX of the Education Amendments of 1972 prohibits sex discrimination in educational institutions that receive federal funds. The United States Department of Education's Office of Civil Rights, which enforces Title IX, issued a memo in which it defined sexual harassment as: verbal or physical conduct of a sexual nature, imposed on the basis of sex, by an employee or agent of a recipient of federal funds that denies, limits, provides different, or conditions the provision of aid, benefits, services, or treatment protected under Title IX. Many legal definitions of sexual harassment in workplaces and educational institutions are precise, but somewhat unwieldy. Other definitions are less precise, but more user-friendly. For example, Dr. Nan Stein, an authority on sexual harassment in schools, has defined sexual harassment in a more usable way as, "any form of unwanted sexual attention... defined by the one person is the target of the harassment." (6) While this definition lacks the technical precision of that provided by the Office of Civil Rights, it makes clear that the core concept of sexual harassment is unwanted or unwelcome sexual conduct. Similarly, the National Advisory Council on Women's Educational Programs defined sexual harassment of students as: the use of authority to emphasize the sexuality or sexual identity of the student in a manner which prevents or impairs that student's full enjoyment of educational benefits, climate or opportunities. (7) The American Association of University Women, in its 1993 poll of sexual harassment, in elementary and secondary schools, defined sexual harassment as "unwanted and unwelcome behavior which interferes with your life. Sexual harassment is not behaviors that you like or want." (8) This definition, unlike the National Advisory Council's. does not references the authority or power issue, but rather focuses on the unwanted nature of the sexual conduct. A fourth straightforward definition used by some workplace trainers provides that sexual harassment is deliberate or repeated sexual behavior that is not welcomed, not asked for and not returned. EMPIRICAL/ACADEMIC DEFINITIONS Academic research provides another source of definitions of sexual harassment. These definitions have been developed empirically, through investigation of what various groups of individuals perceived sexual harassment to be under different circumstances. In 1980, Dr. Frank Till published the following empirical definition which describes the range of conduct that constitutes sexual harassment: generalized sexist remarks; inappropriate and offensive, but essentially sanction-free sexual advances; solicitation of sexual activity or other sex-linked activity by promise of reward; coercion of sexual activity by threat of punishment; sexual crimes and misdemeanors. (9) A second empirically-based definition of sexual harassment was offered by Dr. Louise Fitzgerald and others in 1988. (10) They view sexual harassment along a continuum of behaviors, with gender harassment at one end and sexual imposition on the other. These levels of sexual harassment correlate with the legal definitions of quid pro quo and hostile work environment sexual harassment. "Gender harassment" consists of generalized sexist remarks and behavior not designed to elicit sexual cooperation but rather to convey insulting, degrading or sexist attitudes. "Seductive behavior" is unwanted, inappropriate, and offensive sexual advances. "Sexual bribery" is the solicitation of sexual activity or other sex-linked behavior by threat of punishment. "Sexual coercion" is the coercion of sexual activity by threat of punishment and "sexual imposition" includes gross sexual imposition, assault, and rape. As this list demonstrates, the term sexual harassment covers a broad range of behaviors. Undoubtedly, it is this breadth of behaviors that contributes to the difficulty some people experience in defining and understanding sexual harassment. Based on her research describing the types of conduct that can constitute sexual harassment, Dr. Fitzgerald has offered the following definition of sexual harassment: Sexual harassment consists of the sexualization of an instrumental relationship through the introduction or imposition of sexist or sexual remarks, requests or requirements, in the context of a formal power differential. Harassment can also occur where no such formal power differential exists, if the behavior is unwanted by or offensive to women. (11) It is important to note that the concept of the intent of the harasser is not addressed by this definition. This is consistent with the legal definitions of sexual harassment, which prohibit sexual conduct that is unwelcome, as defined by the recipient of the conduct. As Dr. Fitzgerald's definition also makes clear, sexual harassment is about power. Task Force member Dr. Michele Paludi a leading researcher in this area, has observed that, central to any definition of sexual harassment is the concept that it is an abuse of power. This is the result of a confluence of power relations and sexism in a culture stratified by sex. This power is either formal or informal...Formal power is derived from a formal role such as supervisor or professor, where an individual is in a position of authority over another. Informal power is derived from men's sexual prerogative and their perceived physical strength in comparison to women. Sexual harassment occurs, in most instances, when individuals exploit positions of power granted to them by their gender or by their roles in an institutional structure. This is as true for the workplace as it is for the classroom. (12) Dr. Paludi has noted that sexual harassment also can be defined from an organizational perspective. A major barrier to the general acceptance that sexual harassment is a devastating force in our society continues to be the widespread belief that it is a matter of personal relations outside of an institution and unrelated to the institution's powers and prerogatives. However, the reality is that the structure and culture of an organization interact with psychological dynamics to increase women's, and some men's, vulnerability to sexual harassment. In this organizational view, sexual harassment results from opportunities presented by the power and authority relationships created by the hierarchical structure of organizations. Dr. Paludi offers that, Since work and academic organizations are defined by vertical stratification and asymmetrical relations between supervisors and subordinates, teachers and students, individuals can use the power of their position to extort sexual gratification from their subordinates. In sexual harassment, the harasser is an individual who holds expert and informational power in an academic or work setting, e.g., grades, letters of recommendation, promotions and raises. Thus, sexual harassment is about an abuse of power, both sociocultural and organizational power. (13) Understandable and useful definitions of sexual harassment are important because they serve as guides to behavior in the workplace and academia. As Phyllis Crocker, a researcher on sexual harassment in academia has noted, definitions, can educate the community and promote discussion and conscientious evaluation of behavior and experience. Students learn that certain experiences are officially recognized as wrong and punishable; professors are put on notice about behaviors that constitute sexual harassment; and administrators shape their understanding of the problem in a way that directs their actions on student inquiries and complaints. (14) LIMITATIONS OF DEFINITIONS One principal shortcoming of the existing definitions of sexual harassment is their failure to take into account the perspectives and experiences of persons in different communities. For example, the participants in the people of color roundtables convened by the Task Force emphasized the need for definitions of sexual harassment that respond to the unique experiences of members of the communities of color. As described in Chapter 6, because people of color are sexually harassed based on negative racial/ethnic stereotyping and negative gender stereotyping, they experience sexual harassment in a way that is unique and especially stigmatizing. Dr. Judy Trent Ellis and other scholars argue for the legal recognition of the category of sex-race discrimination. (16) They believe this category will more accurately describe the sexual harassment of persons of color and therefore will aid in the analysis and proof of cases of discrimination against black women and other persons of color. Persons with disabilities, gay men, lesbians and bisexuals, and older women also frequently are targets of sexual harassment. As discussed in Chapter 6, these groups have unique vulnerabilities that are exploited by those who harass them. Their perspectives on harassment, therefore, are different for each group. For the most part, the existing definitions of sexual harassment are based on the conduct of white, heterosexual individuals and do not address the multiple problems that these individuals face when harassment occurs. In order for accurate and meaningful definitions of sexual harassment to be developed, the incidence and impact of sexual harassment on these populations must be fully studied and assessed. Because sexual harassment is about power, the more vulnerable an individual is due to other characteristics, such as race, ethnicity, age, sexual orientation or disability, the greater is the potential for sexual harassment. Definitions that include these factors will be more informative and provide better guidance for addressing and remedying sexual harassment. CONCLUSION No single definition of sexual harassment can be meaningful for all situations, purposes and individuals. However, the definitions, concepts and concerns described in this chapter can contribute to a better understanding of the problem of sexual harassment and can provide the basis for the development of definitions that are useful for individual workplaces, educational institutions and communities. ENDNOTES 1. American Heritage Dictionary. (1984). Second College Edition. Dell Publishing Co., Inc., page 317. New York: New York. 2. See Chapter 4 of this Report, "The Incidence and Prevalence of Sexual Harassment in Workplaces and Educational Institutions." 3. 29 C.F.R. section 1604.11 (a). 4. The Center for Women in Government. (1992). "Sexual Harassment: It's No Game." Revised and Updated Edition. Albany: New York. 5. NOW Legal Defense and Education Fund. (1992. "Legal Resource Kit: Employment - Sexual Harassment," page 1. New York: New York. 6. Stein, N., N. L. Marshall and L. R. Tropp. (1993), March. "Secrets in Public: Sexual Harassment in Our Schools,'' page 1. Center for Research on Women: Wellesley College. 7. Till, F. (1980). "Sexual Harassment: A Report on the Sexual Harassment of Students." National Advisory Council on Women's Educational Programs: Washington, D.C. 8. American Association of University Women Education Foundation and Louis Harris & Associates. (1993). "Hostile Hallways: The AAUW Survey on Sexual Harassment in America's Public Schools." AAUW Educational Foundation: Washington, D.C. 9. Till. 10. Fitzgerald, L., S. Shullman, N. Bailey, M. Richards, J. Swekcker, Y. Gold, M. Ormerod and L. Weitzman. (1988). "The Incidence and Dimensions of Sexual Harassment in Academia and the Workplace." Journal of Vocational Behavior. Vol. 32., pages 152-175. 11. Fitzgerald, L. (1990). "Sexual Harassment: The Definition and Measurement of a Construct." In M.A. Paludi, Ed., Ivory Power: Sexual Harassment on Campus. Albany: State University of New York Press. 12. Paludi, M.A. (1992). Submission to the Governor's Task Force on Sexual Harassment. Albany: New York. 13. Paludi. 14. Crocker, P. (1983). "An Analysis of University Definitions of Sexual Harassment." Signs, Vol. 8, pages 696-707. 15. Ellis, J. T. ( 1981). "Sexual Harassment and Race." Journal of Legislation. Vol. 8. 30-45.