In investigating a charge of unlawful harassment, the EOS should be aware that a charging party may allege harassment on a combination of bases; for example, religion and national origin. Where a charge involves allegations of harassment on more than one basis, the EOS should still follow the basic investigative technique outlined in this section. If the Issue of harassment on each specified basis considered separately is CDP, then harassment on the combined bases is CDP. If the issue of harassment on any one of the bases is non-CDP, then harassment on the combined bases is non-CDP. However, as an exception to this general rule, where a charging party alleges harassment on the combined bases of race and sex, that issue is non-CDP. This is so even though harassment based on race and harassment based on sex are CDP issues when considered separately. (See §615.7 (d) below for the procedure to follow for such charges.)

The EOS, at any stage of charge processing, should also be aware that a harassment charge often presents a situation in which it would be appropriate, under §706(f)(2) of Title VII and §1601.13(d) of the Commission's Procedural Regulations, to bring an action in a U.S. district court seeking temporary or preliminary relief pending final disposition of the charge. For this reason, the EOS should refer a potential §706(f) (2) harassment charge Co his/her supervisor without delay and follow the procedure established in the EEOC Compliance Manual, Volume 1, §13.

As an example of this last point, preliminary relief in the form of a temporary restraining order (TRO) was granted to protect a charging party who had brought a charge of sexual harassment and who alleged that she was then discharged by her employer in retaliation for filing the first charge. The court ordered e he employer to continue paying the charging her salary Without requiring her to return Co e he workplace pending a scheduled court hearing. The charge was successfully settled before the hearing date. EEOC v. Golden State Glass Co., Civil Action No. CV 80-837 MML, 22 EPD ¶30,807 (C.D. Cal., TRO granted Mar. 6, 1980).

615.2 Sexual Harassment

(1) A man as well as a woman may be the victim of sexual harassment, and a woman as well as a man may be the harasser.

(2) The harasser does not have to be the victim's supervisor. (S)he may also be an agent of the employer, a supervisory employee who does not supervise the victim, a non-supervisory employee (co-worker), or, in some circumstances, even a non-employee.

(3) The victim does not have to be of the opposite sex from the harasser. Since sexual harassment is a form of sex discrimination, the crucial inquiry is whether the harasser treats a member or members of one sex differently from members of the other sex. The victim and the harasser may be of the same sex where, for instance, the sexual harassment is based on the victim's sex (not on the victim's sexual preference) and the harasser does not treat employees of the opposite sex the same way. (See Commission Decision No. 81-16, CCH Employment Practices Guide ¶6756, and §615.5(1) below.)

Example 1 - If a male supervisor of male and female employees makes unwelcome sexual advances toward a male employee because the employee is male but does not make similar advances toward female employees, then the male supervisor's conduct may constitute sexual harassment since the disparate treatment is based on the male employee's sex.

Example 2 - If a male supervisor harasses a male employee because of the employee's homosexuality, then the supervisor' s conduct would not be sexual harassment since it is based on the employee's sextual preference, not on 'his gender. Title VII covers charges based on gender but not those based on sexual preference. (See Commission Decision Nos. 76-67 and 77-28, CCH Employment Practices Guide ¶¶6493 and 6578, respectively.)

(4) The victim does not have to be the person at whom the unwelcome sexual conduct is directed. (S)he may also be someone who is affected by such conduct when it is directed toward another person. For example, the sexual harassment of one female employee may create an intimidating, hostile, or offensive working environment for another female (or male) co-worker. (See §615.3 (a)(3) below.)

(5) There is no requirement that the victim complain to the harasser or report the sexual harassment to his/her supervisor or employer in order for the employer co be held responsible for the unlawful conduct when the harassment is committed by a supervisor. And while there is, likewise, no requirement that the victim complain to the harasser or report the sexual harassment where the act is committed by a co-worker or a non-employee, the employer will not be held responsible for the act unless it knew or should have known that the act occurred and failed to take appropriate corrective action. (See §615.3(d) below.)

(6) A finding of unlawful sexual harassment does not depend on the victim's having suffered a concrete economic injury as a result of the harasser's conduct. For example, improper sexual advances which do not result in the loss of a promotion by the victim or the discharge of the victim may, nonetheless, constitute sexual harassment where they unreasonably interfere with the victim's work or create a harmful or offensive work environment. (See Commission Decision No. 81-18, CCH Employment Practices Guide ¶6758.)

This section further states that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature constitute sexual harassment when any one of three criteria is met.

(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment.

Example - If a female laborer complains to her foreman that the male workers on the job direct sexually suggestive remarks and gestures at her and the foreman tells her that such conduct is to be expected as part of the job, then her submission to the sexually harassing conduct is made an explicit term or condition of her employment.

No such overt statement is necessary to show that submission to sexual harassment is a term or condition of employment where a connection between employment and submission can be inferred. Such an inference could be made where, for example, other women workers had complained to the employer, either directly or through an agent or supervisor, and had been told that if they did not like the conduct they could find other jobs. Because submission to such sexual conduct is an additional term or condition of employment, one not imposed on employees of the opposite sex, it is sex discrimination and, specifically, sexual harassment.

(2) Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

Example - If an employee^'s promotion depends on his or her granting certain sexual favors and the promotion is denied because the employee refuses to do so, then the employee is the victim of sexual harassment. The same result is reached if the employee does submit and consequently receives the promotion.

Basing any employment decision on whether the affected individual submits to or rejects unwelcome sexual conduct is sexual harassment where a similar decision affecting a member of the opposite sex is not so based. The decision need not have a concrete economic effect on the victim, although it often does, because the nature of the specific employment decision is irrelevant. Whether it involves promotion, discharge, transfer, training, work assignment, salary, overtime, or getting an office with a window-the decision cannot have a sexual string attached.

(3) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.

Example 1 - If a male co-worker of a female employee makes unwelcome sexual advances toward her, his conduct may, depending on the total circumstances, unreasonably interfere with her ability to do her work. Likewise, his conduct may unreasonably interfere with the work performance of other employees, male or female.

Example 2 - If certain male employees make sexual remarks, jokes, or gestures in the presence of or directed toward female employees, that conduct may make the work atmosphere intimidating or threatening for the female employees. The harassment of the female employees may also create an offensive work environment for other male employees.

In the examples, the objectionable conduct may not be such that submission to it constitutes a term or condition of employment, and submission on to or rejection of the conduct may not be the basis of an employment decision. Nonetheless, the conduct is sexual harassment if it unreasonably interferes with an employee^'s work performance or creates a negative work environment, even if conduct is not specifically directed at the person who is affected by it. This section is intentionally broad enough to encompass types of sexual harassment which might not be covered in other ways.

The section also reaffirms that, consistent with Title VII principles, an employee's work atmosphere should be free from harassment and intimidation on based on sex. (See §§615.7 through 615.10 for a discussion of an employer's affirmative duty to maintain a working environment free from harassment on the basis of race, religion, or national origin.)

It should be noted that the conduct described in a charge of sexual harassment may meet more than one or even all three of the criteria established in §1604. 11(a). For example, the ace or acts alleged may be found to constitute an unlawful term or condition of employment and also to create an intimidating, hostile, or offensive work environment and/or underlie an employment decision based on the victim's response to the conduct. By the same token, a specific example given in the section to illustrate one criterion may also overlap and serve to illustrate another criterion. (For a discussion of investigative procedure for determining whether alleged conduct constitutes sexual harassment, see §615.4(a) below.)

Example - A female secretary works for two male supervisors, and each man invites her on repeated but separate occasions to go out for a drink or dinner after work. She considers the invitations of the of the first supervisor to be unwelcome and does not accept them, although he indicates that her job depends on her having a sexual relationship with him. However, she gladly accepts the invitations of the second supervisor, with whom she has an outside social relationship unrelated to their business relationship in the office.

As in the example, submission to a specific form of sexual conduct may be an unlawful condition of continued employment in one case. In another case, similar submission may be part of a voluntary personal relationship having no employment consequences. For this reason, the legality of a particular action will be determined on a case-by-case basis (See §615.4(a) below on investigative procedure for sexual harassment charges.)

The section also provides that the Commission will determine whether an individual acts in an agency or supervisory capacity on the basis of the particular facts involved. Therefore, the Commission will look beyond a job description or title to examine the specific job functions performed by the individual. For example, if an individual who is temporarily assigned supervisory duties engages in sexual harassment of an employee, then the employer may be strictly liable for that individual's conduct while acting in a supervisory capacity. (See §615.4(a) below on investigative procedure and §615.4(b) below on the CDP issue of supervisory sexual harassment having economic impact.)

The term "agent" is used in the Guidelines in the same way as it is used in §701 (b) of Title VII where "agent" is included in the definition of "employer." (See §605.7 (c), Jurisdiction.) The issue of whether an individual acts as an agent is non-CDP. Therefore, the EOS should contact the Coordination and Guidance Services, Office of legal Counsel for further instructions whenever a harassment charge involves a determination of an individual's status as an agent of the employer.

As discussed above, there is no requirement that the victim report the sexual harassment to his /her supervisor or employer. However, in the context of co-worker sexual harassment or non-employee sexual harassment, discussed below, employer responsibility depends, among other things, on a finding that the employer knew or had reason to know of the unlawful conduct. Therefore, a showing that the conduct was reported is one means of evidencing employer knowledge in such cases; but a showing that the conduct was not reported does not automatically preclude a finding that the employer knew or had reason to know of the sexual harassment.

In accordance with the provisions of this section, an employer will be deemed to know or have reason to know of the sexual harassment if an agent or supervisor of the employer knows or has reason to know. Where the employer, its agents, and its supervisors do not know or have reason to know of the harassment, then the employer is not liable. Where the employer, its agents, or its supervisory personnel do know or have reason to know of the harassment, then the employer may still not be liable if the employer can show that it took immediate and appropriate corrective action. The Commission will determine on a case-by-case basis what constitutes "reason to know" and "immediate and appropriate corrective action." (See §615.4(a) below on investigative procedure.)

In holding an employer liable for co-worker sexual harassment in the stated circumstances, this section recognizes that co-worker conduct can have an impact on an employee's ability to successfully perform his/her job. For example, although a co-worker does not have authority to make employment decisions, his/her lack of cooperation may adversely affect a fellow employee's performance and, consequently, result in the employer's taking action against the fellow employee. (See, e.g., Commission Decision No. 71-2725, EEOC Decisions (1973) ¶6290.) Co-worker sexual harassment can lead to the same result. Clearly, such harassment can also detrimentally affect the working environment.

This section identifies these additional factors as the extent of the employer's control over the non-employee and any other legal responsibility which the employer may have with respect to the non-employee's conduct. The Commission will determine an employer's liability for non-employee sexual harassment on the basis of the total facts and circumstances of each case, including employer knowledge, corrective action, control, and other legal responsibility. (See §615.4(a) below on investigative procedure.)

Example 1 - When the waitress asked if the four male customers seated at the table were ready to order, one man put his arm tightly around her waist and told her that what he wanted was not on the menu, prompting his companions to laugh and comment in the same vein. When she was finally able to finish taking their orders, the man removed his arm and patted her as she turned to leave. She went directly to the restaurant manager and reported the unwelcome sexual conduct. The employer may be responsible if, on learning of the sexual harassment, failed to take immediate and appropriate corrective action within its control. Depending on the circumstances, such action might be as relatively simple as switching table assignments to have a waiter finish serving that table and making whatever arrangement might be necessary so that the waitress would not be financially or otherwise harmed by the substitution (for instance, by losing the amount of a tip she could have earned).

Example 2 - An employer contracted to have the office duplicating machine serviced, which was frequently necessary. The female employee who was responsible for operating the machine dreaded service calls because the male service representative, who repaired and maintained the machine, made sexual advances toward her whenever he was in the office and she found his unwelcome behavior increasingly disturbing. When he told her that he would be unable to make a rush repair unless she "cooperated" by going out with him, she complained to her supervisor. As in the preceding example, the employer may be responsible in such circumstances if it failed to take corrective measures within its control once it knew or had reason to know of the sexual harassment.

It bears repeating that, although the victim in both of the examples reported the non-employee's sexual harassment, such reporting is not a requirement. However, it could have a bearing on the issue of employer knowledge. (See §615.3(d) above.)

Because the Commission decide the liability issue on a case-by-case basis, evidence that the wrongful conduct was by a non-employee of a certain type or description (for example, a salesperson, or a repairperson, or a customer) will neither conclusively establish nor bar employer liability. Whether an employer is ultimately responsible will depend on the relationship between the employer and the non-employee as revealed by the specific factual context in which the allegedly unlawful conduct occurred.

The person(s) to whom an employer be liable under the provisions of this section depends on the specific factual circumstances.

Example - If a male supervisor recommends a promotion for a female employee (who may or may not be qualified) because she is engaged in a sexual relationship with him, then the supervisor's action may constitute sex discrimination against an eligible and qualified male employee who consequently lost the promotion opportunity.

However, the male in the example may not be the only employee who can allege sex discrimination in that context. Depending on the facts, a showing of sex discrimination may also be made by an eligible and qualified female employee who was likewise denied the promotion opportunity.

Example - If such a female employee were to show, for instance, that sex is a factor in getting a promotion and that the employer traditionally only promotes male employees (this particular promotion notwithstanding because of the circumstances), then the fact that a woman was promoted would not preclude a finding of sex discrimination against the female employee who was denied the promotion.

In accordance with the provisions of this section, employer liability, if any is found to exist, is based on sex discrimination - which can affect males or females, employees or non-employees. The Commission will determine the liability issue involved in such charges on a case-by-case basis, closely examining the entire factual record. In sum, the Commission will follow the same procedure in this area as it follows in resolving questions which arise in the related area of sexual harassment.

(l) Specifically, detail the conduct which is alleged to constitute sexual harassment. Include the type(s) of conduct, the frequency of occurrence, and the date(s) on which or the time period over which the conduct occurred.

(2) Ascertain the specific context(s) in which the conduct occurred. Include the nature and general description of the workplace and the specific location and circumstances in which the conduct occurred.

(3) Determine the effect of the conduct on the charging party; identify the type(s) of effect (e.g., economic, non-economic, and/or psychological), and detail the specific consequences involved. For example, if the charging party was discharged for rejecting the employer's sexual advances, determine whether and to what extent (s)he suffered economic harm (including wages lost less other income earned, benefits los, and expenses incurred).

(4) Determine the time relationship between the occurrence of conduct and its effect on the charging party.

(5) Ascertain whether persons of the opposite sex from the charging party were subjected to similar conduct or were treated differently by the alleged harasser.

(6) Identify the relationship of the alleged harasser to the employer; i.e., determine whether the harasser was the employer, an agent of the employer, a supervisory employee, a non-supervisory employee (co-worker), or a non-employee. Make this determination on the basis of the total facts existing at the time of the alleged sexual harassment, not just on the basis of a job title or description. For example, if the harasser was a non-supervisory employee (co-worker of the charging party), ascertain whether (s)he was acting in a supervisory capacity when the conduce occurred.

In determining whether an individual was a supervisor or agent:

(i) Ascertain his/her job title;

(ii) Obtain a copy, if available, of his/her job description;

(ii) Ascertain the specific duties performed at the time of the alleged sexual harassment; and

(iv) Especially, note whether (s)he directed and had responsibility for the work of other employees; had authority to recommend even if not to make, employment decisions affecting others (e.g., hiring, firing, promoting, granting or denying leave); or was responsible for the maintenance of administrative records concerning others (e.g., time, attendance).

Such a determination is important in identifying the classification not only of the alleged harasser but also of a person who allegedly knew or should have known of the conduct.

Note, however, that the issue of whether an individual acted as an agent of the employer is non-CDP. (See §615.3(e) above.) Therefore, after obtaining the information listed above and otherwise completing the investigation, contact the Coordination and Guidance Services, Office of Legal Councel, for further instructions.

(7) If the alleged harasser was a non-employee, ascertain the extent of the employer's control over and legal responsibility for the conduct of the harasser.

(8) If the alleged harasser was a co-worker or a non-employee, determine whether the employer, an agent of the employer, or a supervisory employee knew or should have known of the alleged sexual harassment.

In this regard, ascertain whether:

(i) The charging party or any other individual reported or complained of the harasser's conduct to the employer, an agent, or a supervisor;

(ii) The employer, an agent, or a supervisor observed or was in a position to observe the conduct; or

(iii) The employer, an agent, or a supervisor was or should have been otherwise alerted to the conduct (if, for example, the conduct was discussed in the presence of the employer, an agent, or a supervisor).

Obtain copies of any available documentation (e.g., letters, memoranda, reports, statements) which would support a conclusion that such persons knew or had reason to know of the sexual harassment.

(9) If the alleged harasser was a co-worker or a non-employee, also determine whether the employer took immediate and appropriate corrective action.

In making this determination, ascertain:

(i) What action, if any, was taken;

(ii) When it was taken; and

(iii) Whether it fully remedied the conduct without adversely affecting the terms or conditions of the charging party's employment in some manner (for example, by requiring the charging party to work less desirable hours or in a less desirable location).

Also note whether the employer had a policy or practice designed to prevent the occurrence of sexual harassment and what specific steps, if any, the employer had taken to implement such a policy or practice.

(10) Obtain statements from witnesses or other persons, if any, who can corroborate or support any of the charging party's allegations. Such evidence is very important in a sexual harassment charge. Without it, the record often consists of the charging party's word against that of the employer; and the outcome depends on the credibility of the charging party.

(11) Obtain statements from other persons, if any, who are or have been victims of sexual harassment by the alleged harasser in the work place. These people do not have to be working for the employer at the time of the investigation. They may, for example, have quit before charging party was hired in order to escape the sexual harassment.

(12) Obtain a statement from the alleged harasser. Also obtain statements from witnesses or other persons, if any, who can corroborate or support the employer's statements.

(13) If an adverse employment action was taken against the charging party, ascertain the employer's reason(s) for the action and obtain any information or documentation which would bear on the legitimacy of the reason given. In this regard, note that there may be a connection between the employment decision and the alleged harassment which is not readily apparent.

For example, if the employer discharges the charging party because of his/her deteriorating work performance or absenteeism and the charging party's poor record is the result of sexual harassment, the employer's reason may be a pretext for unlawful discrimination against the charging party if the employer knows of the sexual harassment. Where such an adverse action is taken, compare the charging party's performance or record before and after the alleged harassment and note whether the employer provided the charging party with any notice (e.g., a written warning) prior to taking the adverse action.

(14) If the charging party alleges that (s)he was sexually harassed by more than one person, follow the investigative procedure outlined above with respect to each alleged harasser.

(1) Sexual harassment is CDP where the charge consists of an allegation by the charging party that (s)he suffered concrete economic harm as a result of rejecting his/her supervisor's unwelcome sexual advances or requests for sexual favors. (See Commission Decision No. 81-17, CCH Employment Practices Guide ¶6757.) The loss of wages due to denial of promotion or discharge is one example of such economic harm.

A cause LOD should be issued where the investigation reveals the following evidence:

(i) The charging party's supervisor made unwelcome sexual advances toward or requests for sexual favors from the charging party.

(ii) The charging party rejected the supervisor's sexual advances or requests.

(iii) As a result of the charging party's rejection of the supervisor's sexual advances or requests, the supervisor used his/her official position to take an adverse employment action against the charging party or the supervisor's conduct forced the charging party to cake an action which was against the charging party's own employment interests (e.g., resigning).

(iv) The employment action resulted in economic injury to the charging party.

Note: If the charging party submitted to the advances or requests for sexual favors, the issue is non-CDP regardless of whether economic benefit or harm resulted from the submission.

(2) Sexual harassment is also CDP where the charge consists of an allegation that charging party's employer required him/her co wear a sexually provocative and revealing uniform and that charging party was sexually harassed as a result of wearing the uniform. (See Commission Decision No. 77-36, CCH Employment Practices Guide ¶6588; Commission Decision No. 81-17, CCH Employment Practices Guide ¶6757; EEOC v. Sage Realty Corp., 507 F.Supp. 599, 25 EPD ¶31,529 (S.D. N.Y. 1981); and §619, Grooming Standards). Often charging party may further allege that the employer took an adverse employment action against him/her for refusing to continue to wear the uniform; however, such an allegation is not necessary for this issue to be CDP.

A cause LOD should be issued where the investigation reveals the following evidence:

(i) The charging party's employer required him/her to wear a sexually provocative and revealing uniform as a term or condition of employment.

(ii) The employer did not require employees of the opposite sex from the charging party to wear similarly sexually provocative and revealing uniforms.

(iii) As a result of wearing the uniform, the charging party was sexually harassed.

(iv) The charging party refused to continue wearing the uniform, and the employer took an adverse employment action against the charging party because of the refusal. (Note: These two elements are not essential to a cause determination but may form part of the findings supporting a cause LOD.)

Although reported federal court decisions in sexual harassment cases are still few, the number is growing. However, with few exceptions, these cases have involved sexual harassment of a female employee by her male supervisor with resulting economic harm to the victim. Many sexual harassment issues in other factual contexts are yet to be directly addressed by the courts or successfully litigated. Moreover, courts have applied different standards in determining employer liability. The following list is not exhaustive but includes the leading cases in this area.

(a) Williams v. Saxbe, 413 F.Supp. 654, 11 EPD ¶10,840 (D.D.C. 1976), rev'd and remanded on other grounds sub nom. Williams v. Bell, 587 F.2d 1240, 17 EPD ¶8605 (D.C. Cir. 1978), decided on remand sub nom. Williams v. Civiletti, 487 F. Supp. 1387, 23 EPD ¶30,916 (D.D.C. 1980) (submission to supervisor's sexual advances was a term and condition of plaintiff's employment in violation of Title VII).

(b) Garber v. Saxon Business Products Inc., 552 F.2d 1032, 14 EPD ¶7598 (4th Cir. 1977) (complaint alleged an employer policy or acquiescence in a practice of compelling female employees to submit to male supervisors' sexual advances in violation of Title VII).

(c) Barnes v. Costle, 561 F. 2d 983, 14 EPD ¶7755 (D.C. Cir. 1977) (appellant established a prima facie case of sex discrimination by alleging that retention of her job was conditioned upon submission to sexual relations with her supervisor and that, but for her sex, such a condition would not have been imposed; generally, an employer is chargeable with Title VII violations committed by its supervisory personnel).

(d) Tomkins v. Public Service Electric & Gas Co., 568 F.2d 1044, 15 EPD ¶7954 (3rd Cir. 1977) (a Title VI I violation is alleged where (l) a term or condition of employment has been imposed, and (2) it has been imposed by the employer, either directly or vicariously, in a sexually discriminatory fashion).

(e) Miller v. Bank of America, 600 F.2d 211, 20 EPD ¶30,086 (9th Cir. 1979) (the employer was not relieved of liability either because of its established policy against sexual harassment or because of the plaintiff's failure to use the personnel procedures available to her). The court concluded: "…[R]espondeat superior does apply here, where the action complained of was that of a supervisor, authorized to hire, fire, discipline or promote, or at least to participate in or recommend such actions, even though what the supervisor is said to have done violates company policy." 600 F.2d at 213 (emphasis added).

The decision in this case is particularly significant because, in the stated context, the plaintiff's Title VII claim was not dependent upon the employer's knowing or having reason to know of the sexual harassment and failing to take corrective action. The standard applied by the court is the same strict liability standard applied by the EEOC under §1604.11(c) of the Guidelines, defining employer responsibility for sexual harassment committed by the employer, its agents, or its supervisory employees.

(f) Bundy v. Jackson, 641 F.2d 934, 24 EPD ¶31,439, (D.C. Cir. 1981), rev'g and remanding Civil Action No. 77-1359, 19 EPD ¶9154 (D.D.C., Apr. 25, 1979) (the court reversed the lower court's conclusion that, although the plaintiff fully proved supervisory sexual harassment, she had not been discriminated against in any term or condition of employment, including promotions; the court ordered the employer to establish specific procedures for investigating and remedying sexual harassment).

Noting that violations of Title VII have been found where harassment on the basis of race or national origin creates a discriminatory work environment, the court applied the same principles in holding that such an atmosphere resulting from sexual harassment likewise violates Title VII. This important decision is consistent with the Commission's position and with §1604.11(a)(3) of the Guidelines.

(g) Munford v. James T. Barnes & Co., 441 F.Supp. 459, 16 EPD ¶8233 (E. D. Mich. 1977) (an employer has an affirmative duty Co investigate sexual harassment complaints and deal appropriately with the offending personnel).

(h) Heelan v. Johns Manville Corp., 451 F.Supp. 1382, 16 EPD ¶8330 (D.Colo 1978) (plaintiff established a prima facie case of sex discrimination by showing that (l) submission to her supervisor's sexual advances was a term or condition of employment, (2) this fact substantially affected her employment, and (3) employees of the opposite sex were not similarly affected. Plaintiff is not required to prove a policy or practices of the employer endorsing sexual harassment).

(i) Rinkel v. Associated Pipeline Contractors , Inc., Civil Action No. F77-19, 16 EPD ¶8331 (D. Alaska, Apr. 6, 1978) (plaintiff stated a cause of action under Title VII by alleging that she was denied another position with the defendant because she refused to perform sexual acts with a senior management official; plaintiff is not required to plead that the alleged incidents of sexual harassment involved a policy or continued practice on the part of the employer).

(j) Kyniazi v. Western Electric Co., 461 F.Supp. 894, 18 EPD ¶8700 (D.N.J. 1978) (sexual harassment of female employee by male co-workers included loud remarks of a sexual nature and the creation and dissemination of an obscene cartoon designed to embarrass and humiliate her as a woman; supervisors' awareness and failure to take action implicitly encouraged the harassment).

(k) Equal Employment Opportunity Commission v. Sage Realty Corp. 507 F. Supp. 599, 25 EPD ¶31,529 (S.D. N.Y. 1981) (employer imposed a sexually discriminatory term or condition of employment by requiring female employee to wear a revealing and provocative uniform which subjected her to sexual harassment by the public).

(l) Wright v. Methodist Youth Services, Inc., _____ F.Supp.______ 25 EPD ¶31,712 (N.D. Ill. 1981) (male plaintiff stated a cause of action under Title VII by alleging that he was discharged for rejecting his male supervisor's homosexual advances).

(l) Verbal Conduct - In describing discriminatory conduct which may be sexual harassment, the Guidelines include unwelcome sexual advances and requests for sexual favors. Such forms of conduct are clearly sexual in nature. It is important to bear in mind that the discriminatory, unwelcome "verbal conduct" referred to in the Guidelines must also be of a sexual nature in order to constitute sexual harassment.

Other forms of verbal conduct or harassment (such as terms or expressions) may unlawfully discriminate on the basis of sex (gender) without being sexual in nature. For instance, an employer's practice of referring to male employees as "men" and female employees as "girls" discriminates against the women on the basis of their sex. As noted by the Commission, there is an implication of female inferiority inherent in such disparate treatment. Commission Decision No. 72-0679, CCH EEOC Decisions (1973) ¶6324. However, such discriminatory verbal conduct is not sexual in nature and, therefore, is not sexual harassment. (see §613, Terms, Conditions, and Privileges.)

Similarly, some forms of verbal conduct (such as specific words or some jokes) may involve sex or sexuality without discriminating on the basis of sex. That is, such conduct does not treat one sex either more or less favorably than the other sex. Without such disparate treatment, unwelcome verbal conduct of a sexual nature is not sex discrimination and, consequently, cannot be sexual harassment.

Verbal conduct - no matter how offensive - which neither discriminates on the basis of sex nor is sexual in nature clearly cannot be sexual harassment. Such conduct includes, for example, profanity or vulgar language of a non-sexual nature. If, however, such language were used in the presence of or directed toward members of one sex only, then the conduct would constitute sex discrimination but still not sexual harassment.

(2) Physical Conduct - The distinction drawn in the preceding discussion applies equally to discriminatory, unwelcome "physical conduct." It must be of a sexual nature to constitute sexual harassment. Physical conduct-such as obstructing a person's path, pushing him/her, grabbing his/her arm-is sex discrimination if it based on the sex of the person subjected to it. However, it is not sexual harassment unless the manner or context in which it occurs has sexual implications.

Berating an individual for mistakes, criticizing his / her work performance, keeping strict account of absence or tardiness, taking away duties or responsibilities, imposing additional work or burdensome conditions, forbidding conversation with co-workers, suggesting that (s)he quit are examples of conduct which may be harassment. A refusal to instruct or assist or to cooperate in work requiring team effort is still another example of conduct which may constitute unlawful harassment. If such conduct is directed at an individual because of his/her sex-whether by the employer, a supervisor, or a co-worker-it constitutes prohibited sex discrimination. (See, e.g. Commission Decision No. 71-2725, CCH EEOC Decisions (1973) ¶6290.) Under Title VII, an employer has an affirmative duty to maintain a working environment free from such harassment.

With one exception, harassment on the basis of sex (which is not sexual harassment) is a CDP issue. In investigating such an allegation, the EOS should follow the basic procedure outlined in §615.4(a) above. Because this issue is CDP, the district office may issue an LOD upon completion of the investigation without contacting the Coordination and Guidance Services, Office of Legal Counsel. Importantly, however, an allegation of harassment on the combined bases of sex and race presents a non-CDP issue. (See §615.7 (d) below.)

While such harassment violates §704(a), it does not constitute either sexual harassment or harassment on the basis of sex (which are both violations of §703 of Title VII), even if it stems from the victim's opposing sex discrimination. Retaliatory harassment is a separate and distinct violation. (See §614, Section 704(a).) However, a charge of sexual harassment or of harassment on the basis of sex (or on any other prohibited basis) may include a separate allegation of harassment in violation of §704(a) stemming from the charging party's opposition to the initial discriminatory conduct.

615.7 Harassment on the Bases of Race, Religion, and National Origin

In conformity with §1604.11(b) of the Guidelines, the Commission will continue to determine on a case-by-case basis whether alleged conduct constitutes racial, religious, or national origin harassment, considering the circumstances and context in which the conduct occurred as reflected by the entire record. (See §615.3 above.) In determining whether an employer is liable for such harassment, the Commission has applied and continue to apply the standards set forth in the Guidelines, §1604.11 (c)-(e): an employer is strictly liable for harassment committed by it, its agents, or its supervisors; and an employer is responsible for co-worker harassment and be responsible for non-employee harassment if the employer , its agents, or supervisors knew or should have known of the unlawful conduct and the employer failed to take immediate and appropriate corrective action. (See the discussion at §615.3 above.)

Example - A Black female employee alleges that her supervisor subjects her and/or other Black females to sexual harassment because of her/ their race and sex buy does not sexually harass White female employees.

615. Racial Harassment

(a) Commission Decisions

(1) Commission Decision No. YSF 9-061, CCH EEOC Decisions (1973) ¶6013 (Black employee was subjected to co-worker and supervisory harassment even after employer signed conciliation agreement; mere announcement of policy against racial discrimination is insufficient where management has reason to believe racial discrimination is occurring).

(2) Commission Decision No. YSF 9-108, CCH EEOC Decisions (1973) ¶6030 (Title VII requires an employer to maintain a working environment free from racial intimidation, including taking positive action where necessary to redress or eliminate employee harassment; here, employer clearly had knowledge of supervisory and co-worker harassment of Black employee and, rather than aiding the victim, accommodated the wrongdoers by discharging their victim).

(3) Commission Decision No. 70-61, CCH EEOC Decisions (1973) ¶6059 (cause found where Black female supervisor was demoted for inability to perform supervisory duties as result of harassment by supervisors and subordinates).

(4) Commission Decision No. 71-969, CCH EEOC Decisions (1973) ¶6193 (white employee was "aggrieved" in fact and as a matter of Law by supervisor's attitude toward and use of racial epithets in referring to Blacks; employer is responsible for behavior of its agents and failure to take reasonable steps calculated to maintain working environment free from racial intimidation or insult).

(5) Commission Decision No. 71-1442, CCH EEOC Decisions (1973) ¶6216 (employer is responsible for the actions of its supervisory personnel and is not relieved from liability for harassment by a disclaimer of responsibility for the personal bias of an employee and the promise to dismiss any individual not conforming to company policy of nondiscrimination).

(6) Commission Decision No, 71-2344, CCH EEOC Decisions (1973) ¶6257 (employer failed to take reasonable steps to prevent co-worker harassment of first Black employee assigned to a previously all-White locker room). (See also Commission Decision No. YME 9-068, CCH EEOC Decisions (1973) ¶6039.)

(7) Commission Decision No. 72-1561, CCH EEOC Decisions (1973) ¶6354 (employer failed to remedy supervisory and co-worker harassment on basis of race and national origin, including derogatory jokes, remarks, and publication; union was also responsible because it failed to take necessary affirmative action).

(8) Commission Decision No. 74-25, CCH Employment Practices Guide ¶6400 (fire department was responsible for race bias where Black fire men were harassed by co-workers and excluded from social and other functions; employer failed to take reasonable steps to eliminate such actions or remedy their effects).

(9) Commission Decision No. 76-09, CCH Employment Practices Guide ¶6604 (police department violated Title VII by failing to maintain working atmosphere free from racial harassment of Black officers, including: racial epithets over police radio, racially derogatory remarks, requiring multiple reports for routine incidents, building up adversely critical personnel files, using subjective evaluations by all-White supervisory staff).

(b) Court Cases

(l) Rogers v. Equal Employment Opportunity Commission, 454 F.2d 234, 4 EPD ¶7597 (5th Cir. 1971), cert. denied, 406 U.S. 957, 4 EPD ¶7838 (1972) (the court reversed the denial of EEOC's demand for access to defendant's patient records in connection with a charge investigation where the lower court based the denial on a determination that a Hispanic employee was not "aggrieved" by alleged racial discrimination against patients; the court stated that the relationship between an employee and his/her working environment is of such significance as to be entitled to statutory protection and that §703 of Title VII prohibits the practice of creating a working environment heavily charged with ethnic or racial discrimination).

(2) Anderson v. Methodist Evangelical Hospital, Inc., Civil No. 6580, 3 EPD ¶8282 (W.D. Ky., June 23, 1971), aff'd, 464 F.2d 723, 4 EPD ¶7901 (6th Cir. 1972) (employer was liable for failure to investigate and correct racial unfairness of Black plaintiff's discharge which was based on her inability to get along with racially prejudiced co-workers; employer had knowledge, through its agents, of the racial conflict).

(3) Harberson v. Monsanto Textiles Co., Civil Action No. 75-1626, 3 EPD ¶11,586 (D. S.C., Dec. 12, 1976) (no race discrimination in termination of White employee for making racially derogatory remarks to Black co-worker; employer acted lawfully and laudably in preserving non-racist working environment and enforcing policy of non-harassment).

(4) United States v. City of Buffalo, 457 F.Supp. 612, 18 EPD ¶8899 (W.D. N.Y. 1978) (numerous incidents of racial slurs and harassment of Black police officers disclosed a working environment heavily charged with racial discrimination; police department hid behind a paper policy of racial tolerance and failed to issue strong policy directive and take appropriate internal disciplinary action).

(5) De Grace v. Rumsfeld, 614 F.2d 796, 22 EPD ¶30,621 (1st Cir. 1980) (court reversed dismissal of Black plaintiff's claim of racial discrimination in his discharge for absenteeism and remanded case to provide plaintiff, a civilian firefighter with the Navy, an opportunity to show that racially offensive co-worker conduct created a reasonable fear for his personal safety, employer knew or should have known of harassment but failed to take remedial measures, and that he himself acted reasonably and would have reported for duty but for his fear and the lack of corrective action; court stated that employer may not stand by and allow employee to be subjected to racial harassment by co-workers and must accept responsibility for supervisors' derelictions).

(6) Equal Employment Opportunity Commission v. Murphy Motor Freight Lines, Inc., 488 F.Supp. 381, 22 EPD ¶30,888 (D. Mn. 1980). (defendant's management and supervisors knew and should have known of numerous instances co-worker harassment of Black employee but took inadequate steps to prevent racial harassment and company had no clear policy against it; employer was ordered to take affirmative action, including educating and sensitizing supervisory and management personnel and developing written disciplinary measures to be directed against offending employees and officials; court awarded harassed employee attorney's fees, finding that he deserved them for performing a valuable public service although he had not prevailed on all issues).

615.9 Religious Harassment

(a) Commission Decisions

(1) Commission Decision No. 71-685 (unpublished) (Title VII imposes on an employer the duty to protect its employees from harassment by either co-workers or supervisors where such harassment is because of or related to the employee's Title VII status).

(2) Commission Decision No. 71-764 (unpublished) (cause found where employer discharged charging party because four co-workers threatened to resign otherwise; the employer knew or should have known that the co-workers were motivated, at least in part, by charging party's having left the Amish faith).

(3) Commission Decision No. 72-1114, CCH EEOC Decisions (1973) §6347 (employer failed to provide working free of religious intimidation where supervisor harassed employees by preaching religion on the job; an employer is responsible for the actions of its supervisors, and charging parties had no obligation to inform higher level managerial personnel of their supervisor's conduct in order for the employer to be bound by the requirements of Title VII).

(4) Commission Decision No. 76-98, CCH Employment Practices Guide ¶6674 (cause found where Muslim prison guard was harassed and constructively discharged for practicing respect demanded by his religion, in absence of showing that charging party's religious practices impaired the performance of his duties or the operation of the institution).

(b) Court Cases and Other Decisions

(l) Compston v. Borden, Inc., 424 F.Supp. 157 (S.D. Ohio 1976) (supervisor's conduct calculated to demean employee because of his religion, was held to be a Title VII violation).

(2) Rattner v. Trans World Airlines, City of New York Commission on Human Rights, Decision No. 4135-J (September 11, 1973) (Jewish airline employee was improperly harassed on the basis of his religion where he was singled out for unpleasant and exceptionally heavy work).

615.10 National Origin Harassment

Section 1606.8 of the revised Guidelines addresses the issue of harassment on the basis of national origin and basically follows the provisions of the Sexual Harassment Guidelines. (See §615.3 above.) Section 1606.8(b) provides that ethnic slurs and other verbal or physical conduct relating to an Individual's national origin constitute harassment when this conduct: (1) has the purpose or effect of creating an intimidating, hostile, or offensive working environment; (2) has the purpose or effect of unreasonably interfering with an individual's work performance or (3) otherwise adversely affects an individual's employment opportunities. Section 1606.8(c) through (e) sets out the standards for determining employer responsibility for national origin harassment in conformity with the corresponding provisions of the Sexual Harassment Guidelines. (See §615.3 above.)

(b) Commission Decisions

(1) Commission Decision No. 71-813 (unpublished) (employer knew or should have known that charging party's inability to supervise was directly attributable to the prejudice and harassment of her staff because of her Jamaican national origin; employer may not use the natural consequences of prohibited harassment as the basis for discharging the victim of that harassment).

(2) Commission Decision No. CL 68-12-431EU, CCH EEOC Decisions (1973) ¶6085 (cause found where employer, through supervisor, was aware of and tolerated incidents of coworker harassment of employee of Polish descent; harassment included vulgar names, jokes, and derogatory remarks about employee's ancestry).

(3) Commission Decision No. 70-683, CCH EEOC Decisions (1973) ¶6145 (cause found where two supervisors made derogatory and vulgar remarks about Hispanics). (See also Commission Decision No. 72-1561, CCH EEOC Decisions (1973) ¶6354.)

(4) Commission Decision No. 71-1874, CCH EEOC Decisions (1973) ¶6270 (cause found where foreman harassed Hispanic employee by imposing additional work, instructing other employees not to converse with charging party, and making statements expressing dislike of Hispanics).

(5) Commission Decision No. 72-0621, CCH EEOC Decisions (1973) ¶6311 (cause found where coworker harassed Hispanic employee and employer took no remedial action against harasser after charging party complained of the conduct but instead transferred and then discharged charging party for not getting along with fellow employees).

(6) Commission Decision No. 74-05, CCH EEOC Decisions (1983) ¶6387 (coworker and supervisory harassment and intimidation of Hispanic employee resulted in his constructive discharge; employer failed to maintain an atmosphere free of such intimidation and failed to take any and all steps necessary to eliminate intimidation or remedy the effects).

(7) Commission Decision No. 76-41, CCH EEOC Decisions (1983) ¶6632 (employer failed to fulfill affirmative duty to act in response to Hispanic employee's complaint of coworker harassment and improper training).

(c) Court Cases

(l) Fekete v. United States Steel Corp., 353 F.Supp. 1177, 5 EPD ¶8569 (W.D. Pa. 1973) (isolated incidents of coworker harassment were not based on plaintiff's Hungarian national origin; even if they had been, the employer would not have been liable since it took preventive and corrective steps with regard to those incidents of which its administrative and supervisory personnel knew or became aware).

(2) Cariddi v. Kansas City Chiefs Football Club, Inc. 568 F.2d 87, 15 EPD ¶8014 (8th Cir. 1977) (ethnic slurs about Italian-Americans made by plaintiff's supervisor were part of casual conversation and were not so excessive and disgraceful as to rise to the level of a Title VII violation).

(3) Morales v. Dain, Kalman and Quail, Inc., 467 F.Supp. 1031, 20 EPD ¶30,042 (D. Minn. 1979) (no evidence to support harassment allegation by Cuban plaintiff; supervisor's comments concerning "fast thinking Latin Americans," which were not excessive or disgraceful, did not constitute a Title VII violation).

(4) St. J. Enriquez v. Transit Mixed Concrete Co., 492 F.Supp. 390, 23 EPD ¶31,057 (C.D. Cal. 1980) (Mexican-American plaintiff failed to prove national origin discrimination; although plaintiff was harassed by coworkers, it was never brought to the attention of employer or supervisors).

615.11 Age Harassment

Although the EEOC, has to date, not addressed the issue of age harassment, Title VII case law and Commission Decisions serve as a guide in handling age harassment charges and complaints. Where ADEA precedent is lacking, substantive enforcement of the Act may be developed by borrowing and applying existing Title VII principles to particular facts. This is so because the substantive prohibitions of the ADEA were copied verbatim from Title VII, with the term "age" merely being substituted for "race, color, religion, sex or national origin. " (See § 801, Introduction.) Thus, when an age harassment action is filed, it will be accepted and investigated in much the same way as a Title VII charge. Title VII law and agency principles will guide the determination of whether an employer is liable for age harassment by its supervisors, employees, or non-employees.

Example 1 - J works as a dock employee at a large meat packaging firm. He is the only dockhand over the age of 50 years old; all the other dock workers are in their late 20's or 30's. J complains that he is often harassed by his supervisor while working on the dock. For example, in the presence of coworkers, his boss often characterizes him as being "more accident prone than other employees, and unable to learn new tasks on his job because he is too old," and says that he "is less efficient than younger workers." On a number of occasions, the dock supervisor has said to J that "you can't teach an old dog new tricks" and refused to let him complete assignments. J files an ADEA harassment complaint alleging that as an older worker he is always characterized as more rigid, inefficient, lazy, and accident prone, while younger workers are not generally characterized by their supervisors in such harsh terms.

Example 2 - B works as a bank teller. She is the only teller over 50 years old. During work hours the other tellers frequently tell jokes and insult B about her age, poor health, and medical problems; they never discuss existing health or medical problems of younger workers. B does not enjoy hearing these jokes and particularly resents the insults. She complains about these jokes to her supervisor, who in turn tells her "not to be so sensitive." He then tells her a few age-related jokes of his own. Displeased with his response, B files an age harassment action against her employer. In her charge she alleges that her coworkers harass her at work and her employer tolerates this behavior. B alleges that her employer is responsible for maintaining a work environment free of harassment and that her employer must take positive steps to eliminate employee harassment. Since B's employer knew of the harassment and did not maintain a work environment free of harassment, the employer has violated the ADEA.

Example 3 - Same facts as in Example 2 above, but in this example CP's supervisor requires all employees to lift large and heavy boxes as part of their jobs. In addition to making age-related jokes and insults, B's coworkers leave her the heaviest boxes because they want to force B to retire from that job. Again, B's supervisor took no action after B complained about her coworkers' behavior. B files an age harassment complaint. Since B's coworkers harassed her by leaving the heavier boxes for her to lift with the intention of forcing her to retire and CP had complained to her supervisor of this harassment, the employer has violated the ADEA.

In the above examples, the coworkers' harassment of the charging party was motivated by a bias towards older individuals. In other situations, the motivation may be less one of bias and more of an economic nature. For example, the charging party in a situation like Example 3 may rank high on the seniority list. As a result, she may receive the pick of assignments, get better pay or, by her presence, be blocking the advancement of younger and less senior employees. Had there been no age-related jokes and insults, is seniority so closely related to age as to make the harassment (leaving B the heaviest boxes) a violation of the ADEA? Guidance on the Issue of age-related factors such as seniority will be provided at a later date. Until that time, the issue is non-CDP. (see § 603.)

Age-related harassment may lead to the resignation of the aggrieved individual, who may then bring an action alleging constructive discharge. Lewis v. Federal Prison Industries, 786 F.2d 1537, 40 EPD ¶36,110 (11th Cir. 1986). (See §§612, 812 and Commission Decision No. 84-1, CCH Employment Practices Guide § 6839.)

Example 4 - K is a 60-year-old restaurant worker; he works the night shift for R. He worked as a waiter without a mishap for 25 years, until a new supervisor became manager of the night shift. The new supervisor calls everyone over 50 years old who has gray hair "Pops. " One time he said to K that "this business needs the old bags of the world to retire or rest in peace." When K's supervisor said this, a large group of customers were listening and K became extremely embarrassed. His supervisor would say similar things repeatedly in front of customers while K was on the floor serving them. K complained to the owner about the supervisor's behavior, but she failed to take any action and the remarks continued. In discomfort over these remarks, K quit his waiter job. K now brings an ADEA charge against his employer alleging age harassment and constructive discharge. If the record shows that K's supervisor subjected him to age-related harassment, there would be a violation of the ADEA. Further, if a reasonable person would have found the working conditions created by the harassment intolerable, and CP's resignation was in fact due to these conditions, then CP would have been constructively discharged in violation of the ADEA.

Example 5 - Same facts as in Example 4, but here K's supervisor assigns to him the least profitable tables for tips. His supervisor believes that if K's income drops dramatically over the next few months that this will force him to transfer to another restaurant in another part of town. K may bring an age harassment complaint against his employer because his supervisor gave him a less desirable work assignment in order to force him to accept transfer to another restaurant.

An employer may be liable for age harassment, and sex discrimination or some other form of discrimination or harassment at the same time.

Example 6 - A 55 years old employee alleges that her supervisor subjects her and other female employees to sex and age harassment by repeatedly calling them "old biddies and old hoots." Their supervisor does not call men over 55 by these names, only the women who are all over 55 years old. However, the supervisor has been known to call all his employees over age 55 senile, out-worn, and members of the Geritol generation.

As in Example 6 above, given the appropriate circumstances, a charge or complaint may allege more than one type of harassment. In the example above, it would be appropriate to file an age and sex discrimination charge or complaint against the employer since the employer's alleged actions would violate both Title VII and the ADEA.

615.12 Cross References

(a) §613, Terms, Conditions, and Privileges

(b) §614, Retaliation

(c) §619, Grooming Standards

(d) §801, Introduction