But a single, unusually severe incident of harassment may besufficient to constitute a Title VII violation; the more severedthe harassment, the less need to show a repetitive series ofincidents. This is particularly true when the harassment isphysical. Thus, in Barrett v. Omaha National Bank, 584 F. Supp, 22, 35 FEP Cases585 (D. Neb. 1983), aff'd, 726 F.2d 424, 33 EPD ¶34,132 (8th Cir. 1984), one incident constitutedactionable sexual harassment. The harasser talked to the plaintiffabout sexual activities and touched her in an offensive mannerwhile they were inside a vehicle from which she could not escape.
In a "quid pro quo" case, a finding that the employer's assertedreasons for its adverse action against the charging party arepretextual will usually establish a violation. The investigation should determine thevalidity of the employer's reasons for the charging party'stermination. If they are pretextual and if the sexual harassmentoccurred, then it should be inferred that the charging party wasterminated for rejecting the employer's sexual advances, as sheclaims. Moreover, if the termination occurred because the victimcomplained, it would be appropriate to find, in addition, aviolation of section 704(a).
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In 1980 the Commission issued guidelines declaring sexualharassment a violation of Section 703 of Title VII, establishingcriteria for determining when unwelcome conduct of a sexual natureconstitutes sexual harassment, defining the circumstances underwhich an employer may be held liable, and suggesting affirmativesteps an employer should take to prevent sexual harassment. See Section 1604.11 of the Guidelines on Discrimination Becauseof Sex, 29 C.F.R. § 1604.11 ("Guidelines"). The Commission hasapplied the Guidelines in its enforcement litigation, and manylower courts have relied on the Guidelines.
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a) "Hostile Environment" Violates Title VII - TheCourt rejected the employer's contention that Title VII prohibitsonly discrimination that causes "economic" or "tangible" injury:"Title VII affords employees the right to work in an environmentfree from discriminatory intimidation, ridicule, and insult whetherbased on sex, race, religion, or national origin. 106 S. Ct. at2405. Relying on the 's Guidelines definition of harassment, the court held that a plaintiffmay establish a violation of Title VII "by proving thatdiscrimination based on sex has created a hostile or abusive workenvironment." Id. The Court quoted the Eleventh Circuit'sdecision in Henson v. City of Dundee, 682 F.2d 897, 902, 29EPD ¶ 32,993 (11th Cir. 1982):
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Sexual harassment which creates a hostile or offensiveenvironment for members of one sex is every bit the arbitrarybarrier to sexual equality at the workplace that racial harassmentis to racial equality. Surely, a requirement that a man or womanrun a gauntlet of sexual abuse in return for the privilege of beingallowed to work and made a living can be as demeaning anddisconcerting as the harshest of racial epithets.
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When confronted with conflicting evidence as to welcomeness, theCommission looks "at the record as a whole and at the totality ofcircumstances . . . ." 29 C.F.R. § 1604.11(b), evaluating eachsituation on a case-by-case basis. When there is some indication ofwelcomeness or when the credibility of the parties is at issue, thecharging party's claim will be considerably strengthened if shemade a contemporaneous complaint or protest. Particularly when the alleged harasser may havesome reason (e.g., prior consensual relationship) to believe thatthe advances will be welcomed, it is important for the victim tocommunicate that the conduct is unwelcome. Generally, victims arewell-advised to assert their right to a workplace free from sexualharassment. This may stop the harassment before it becomes moreserious. A contemporaneous complaint or protest may also providepersuasive evidence that the sexual harassment in fact occurred asalleged (see infra Section B). Thus, in investigatingsexual harassment charges, it is important to develop detailedevidence of the circumstances and nature of any such complaints orprotests, whether to the alleged harasser, higher management,co-workers or others.