What Is Sexual Harassment?

At work, an employee is dreading a coworker's arrival, and that coworker has long made them feel 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 great opportunities for those who "cooperate" and makes a sexually suggestive gesture. Meanwhile, an individual in the nearby corner cubicle has been offending several of their coworkers for months by looking at pornography at their desk.

What do these all have in common? They're all examples of sexual harassment, a federal workplace discrimination claim that takes several different forms.

But how do we draw the line between acceptable behavior and unlawful harassment? In other words, how do we define sexual harassment, and how do the Equal Employment Opportunity Commission (EEOC) and courts review a sexual harassment claim?

What Does the Law Say About Sexual Harassment?

Sexual harassment is considered to be a form of sex discrimination under Title VII of the Civil Rights Act of 1964, which applies to all U.S. employers with 15 or more employees.

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, or
• 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 this law when reviewing sexual harassment claims, while it also 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.
• The victim must make it clear that they are not comfortable with the conduct. This could take the form of 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. However, 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 kind of employment action, quid pro quo sexual harassment has taken place. Such harassment also 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: This is a variety of sexual harassment that occurs with demeaning or sexual photographs, jokes, or threats. The presence of these things must be so pervasive as to create an intimidating and offensive work environment.

Each state is different concerning protections against sexual harassment. For example, Alabama allows for an employee to sue an employer for sexual harassment based on whether an invasion of privacy has taken place. In another example, 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

So, at this point, you must be thinking that it's easy to define sexual harassment. While it can be easy to define it, how courts have determined whether such an offense has occurred can be confusing.

For example, with an emphasis on context, courts will consider 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" who 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, 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

Note: If the alleged victim willingly participated in sexual banter or risqué jokes, it will 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) can sexually harass students in violation of the law. 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 the same -- a teacher can 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.

Get Legal Help With Your Sexual Harassment Claim

Sexual harassment can disrupt a working environment, traumatize workers, and result in costly litigation. Whether you've been the victim of sexual harassment, are accused, 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 today.