What Is Sexual Harassment?
At work, an employee dreads a coworker's arrival, and that coworker has long made them uncomfortable. Yesterday, the coworker again made an inappropriate comment about their body.
Across the hall at the same workplace, a manager tells an intern that management can provide excellent opportunities. The manager makes a sexually suggestive gesture. Meanwhile, an individual in the nearby corner cubicle has been offending several coworkers for months by looking at pornography at their desk and continuously engaging in offensive conduct.
What do these all have in common? They're all examples of sexual harassment. Sexual harassment is a federal workplace discrimination claim that takes several forms, regardless of whether it is targeted to the opposite sex or the same sex. Luckily, discrimination laws protect against this.
How do we distinguish between acceptable behavior and unlawful harassing conduct? Do we follow state laws or federal laws to guide us? In other words, how do we define sexual harassment? How do the Equal Employment Opportunity Commission (EEOC) and courts review a sexual harassment claim? Read on for all of these answers and more.
What Does the Law Say About Sexual Harassment?
Under the Code of Federal Regulations, "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" amount to workplace sexual harassment when cooperating with such conduct:
- Is or becomes a condition of someone's employment, either in an implied or an explicit way
- Is used as the basis for an employment action, examples of which might be adjustments to pay, promotions, or firing
At the same time, the Code of Federal Regulations also says that 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."
The EEOC applies when reviewing sexual harassment claims and offers additional guidance on defining this type of harassment. The EEOC has said that:
- Harassment may still occur when there is no economic injury to the victim or regardless of whether the victim is fired.
- The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee. Examples of non-employees include clients or customers.
- The victim and harasser may identify as any gender or as gender non-binary. Put simply, the victim does not have to be of any specific gender identity or sexual orientation.
- The victim must make it clear that they are uncomfortable with the conduct. This could be the victim reporting the conduct to their human resources department.
Types of Harassment: Quid Pro Quo and Hostile Work Environment
Generally speaking, there are two different types of sexual harassment. How courts weigh in on whichever has occurred has gotten more complicated these days:
- Quid Pro Quo: When a workplace authority figure asks for a sexual favor or sexual relationship in exchange for some employment action, quid pro quo sexual harassment occurs. Such harassment occurs when an authority figure merely hints at such an arrangement. In some states, such as Minnesota, the harasser must be in a position of authority and not just assumed to be in such a position.
- Hostile Work Environment: A hostile environment includes a variety of sexual harassment that occurs with demeaning or sexual photographs, jokes, or threats. These things must be pervasive to alter the conditions of employment and create an intimidating and offensive work environment.
Each state is different concerning protections against sexual harassment. For example, Alabama allows an employee to sue an employer for sexual harassment based on whether an invasion of privacy has taken place. Vermont law requires every employer to adopt a policy against sexual harassment. Other states have no specific law prohibiting or punishing sexual harassment and instead rely on federal law.
Learn more about state-specific laws on our sexual harassment legal answers page.
Applying the Definition
While it can be easy to define sexual harassment, how courts have determined whether such an offense has occurred can be confusing.
For example, courts often emphasize context when determining whether sexual harassment has occurred in a hostile work environment. This was tested in a sexual harassment claim filed by a writer for the hit television show "Friends." The writer claimed she was the victim of harassment in the writing room, where they would often engage in taboo banter for purposes of brainstorming. The California Supreme Court dismissed the suit, claiming the banter was just part of the creative workplace required for a comedy show with sexual themes.
In hostile work environment cases, the court will consider the following:
- Frequency of the alleged inappropriate behavior
- Severity of the behavior
- The victim's conduct
- Context of the alleged harassment
- Size of the employer's business
- Nature of the employer's business
- Whether a reasonable person in the plaintiff's position also would have thought the environment was hostile
- What the employer did or did not do to remedy the hostile work environment
- Whether the employee made any efforts to report the behavior, such as speaking with their human resources department
If the alleged victim willingly participated in sexual banter or risqué jokes, it may be more difficult for them to prove that they have actually been harassed.
Common Defenses Employers Use
One case, in particular, is key when addressing how employers can defend against hostile work environment sexual harassment claims. Decided in 1998, Faragher v. City of Boca Raton addressed a common defense that employers use. In the case, the Supreme Court said that an employer may defend themselves by arguing that they took reasonable steps to prevent sexual harassment and made efforts to correct the harassment.
Under other circumstances, employers may also argue that they are not on the hook if an employee did not report the incident or if the worker did not engage in other ways of trying to resolve the concern.
Dispelling Sexual Harassment Myths
- Only women can be harassed: This is not true. Courts have ruled that anyone can be harassed by anyone, regardless of gender identity.
- A woman can't harass another woman, and a man can't harass another man: This is not true. In Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court recognized that illegal sexual harassment can occur between people of the same sex or people who identify as gender non-binary.
- Sexual harassment can only occur in the workplace: This is not true. In Franklin v. Gwinnett County Public Schools, the U.S. Supreme Court ruled that teachers, professors, and other individuals with authority in school systems, including universities and colleges, violate the law if they sexually harass a student. While the case was decided under Title IX of the Education Amendments of 1972, rather than Title VII of the Civil Rights Act of 1964, the implication was that a teacher could sexually harass a student.
- Only supervisors or those in authority positions can be a harasser: This is not true. A harasser can be a coworker and, in some cases, a third party such as an agent or client of the employer. The key is whether the employer knew or should have known of the harassing behavior and failed to act.
Employment Discrimination and Sexual Harassment Is Unacceptable. Get Legal Help With Your Sexual Harassment Claim Today
Sexual harassment or sexual assault can disrupt a working environment, traumatize workers, and result in costly litigation. Whether you've been the victim of sexual harassment or manage a workplace that you want to keep harassment-free, you can benefit from the advice of a lawyer.
Is your employer failing to take corrective action? Not sure if the law applies to temporary workers or independent contractors? Facing other difficult employment decisions as a result of sexual harassment?
Contact a local employment law attorney with experience in sexual harassment cases and sexual harassment laws to answer all of your questions and guide you every step of the way. A lawyer can provide valuable legal advice you can count on, help you review your company's sexual harassment policy, and file a sexual harassment complaint.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
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Contact a qualified employment discrimination attorney to make sure your rights are protected.