What Is Sexual Harassment?

Sexual harassment encompasses unwelcome sexual advances, whether physical conduct of a sexual nature or verbal comments, including demands for sexual favors. It happens in several forms and occurs regardless of whether it is targeted to the opposite sex or the same sex.

Under the Code of Federal Regulations, these harassing behaviors qualify as workplace sexual harassment when the following factors are present:

• Submitting to such conduct became a condition of employment, either impliedly or explicitly.

• Decisions related to employment actions, such as promotions, pay adjustments, or termination, are based on the person's submission to or rejection of such conduct.

Moreover, such conduct disrupts the individual's work performance or creates an uncomfortable, hostile, or intimidating environment.

Dispelling Sexual Harassment Myths

• Gender limitation. Many people wrongly believe that only women can experience sexual harassment. In reality, people of any gender can experience sexual harassment.

• Same-gender harassment. Another widespread myth about sexual harassment is that it only happens between people of opposite genders. In a landmark case by the U.S. Supreme Court, Oncale v. Sundowner Offshore Services, Inc., they established that the laws related to sexual harassment protect individuals regardless of the harasser and the victim’s gender.

• Location restrictions. Sexual harassment can occur in various settings. It can also happen in educational institutions, as demonstrated in the case of Franklin v. Gwinnett County Public Schools. Here, the U.S. Supreme Court ruled that teachers and educators of all levels can be held accountable for sexually harassing students.

• Authority requirement. A common misconception is that only supervisors or someone in superior authority can commit workplace sexual harassment. However, this is not the case. In fact, a harasser can be a coworker of equal rank, subordinate, or external party such as a customer, contractor, or client. The key concept is whether the employer was aware or should have been aware of the harassing behavior and failed to take proper action.

What Does the Law Say About Sexual Harassment?

Title VII of the Civil Rights Act of 1964 considers sexual harassment as a form of sex discrimination, which applies to all U.S. employers with 15 or more employees.

The Equal Employment Opportunity Commission (EEOC) applies when reviewing sexual harassment claims and offers additional guidance on defining this type of harassment. Under EEOC, sexual harassment discrimination is as follows:

• 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 coworker, 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

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 desks and continuously engaging in offensive conduct.

What do these all have in common? They're all examples of sexual harassment.

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 has different 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 occurred. Vermont law mandates employers to have a policy against sexual harassment. Meanwhile, other states do not have specific state law that prohibits or punishes sexual harassment. However, federal laws apply.

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 this case, the Supreme Court said that employers may defend themselves. The employer can argue that reasonable steps were taken to prevent sexual harassment, and that they made efforts to correct the harassing behavior.

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.

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.

Contact a local employment law attorney with experience in sexual harassment cases and sexual harassment laws to answer 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.