Sexual harassment is a serious problem in America. It is not just the victimized employees who experience the crushing emotional injuries of sexual harassment for a long time, nor is it just the harasser who feels for years to come the sting of laws that prohibit sexual harassment. In a society with attention focused on eliminating sexual harassment, how do we learn to draw the line between acceptable behavior and unlawful harassment? In other words, how do we define sexual harassment? How does a court review a sexual harassment claim?
* In the federal context, sexual harassment is considered to be a form of sex discrimination under Title VII of the Civil Rights Act of 1964. Accordingly to the Equal Employment Opportunity Commission (EEOC) “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
* There are two different types of sexual harassment claims, although the manner in which a court will distinguish between the two for purposes of deciding whether harassment has occurred has become blurred in recent years:
- Quid Pro Quo: Sexual harassment that occurs when a supervisor or one in an authority position requests sex, or a sexual relationship, in exchange for not firing or otherwise punishing the employee, or in exchange for favors, such as promotions or raises.
- Hostile Work Environment: Sexual harassment that occurs through the presence of demeaning or sexual photographs, jokes or threats. The inappropriate behavior or conduct must be so pervasive as to, as the name implies, create an intimidating and offensive work environment.
* Each state is different with regard to protections against sexual harassment. For example, Alabama allows for an employee to sue an employer for sexual harassment based on a theory of invasion of privacy. Vermont law, in comparison, requires every employer to adopt a policy against sexual harassment. Other states have no specific law prohibiting or punishing sexual harassment.
Applying the Definition
* While it is easy to define sexual harassment, it is very difficult to apply that definition to a set of particular facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts particularly in hostile work environment cases where it is more difficult than in quid pro quo situations to prove that harassment occurred.
Example: Courts may disagree on whether the posting of one piece of pornographic or sexually offensive material is sufficient to create a hostile work environment.
Example: One court may hold that an unwelcome advance (such as an employee asking another coworker out on a date) does not constitute sexual harassment because it did not rise, in that particular case, to the level of pervasive behavior. In another case, however, the court may rule that based on the specific facts of that situation, a rebuffed request for a date could constitute sexual harassment.
* The U.S. Supreme Court has held that employers may defend themselves in hostile work environment cases brought against them for actions of a supervisor or managerial-level employee by arguing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior. Employers may also argue that they are not liable if an employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment.
Factors for Review
Factors a court will consider in hostile work environment cases include:
* Frequency of the alleged inappropriate behavior.
* Severity of the behavior.
* Conduct of the victim.
* Context of the alleged harassment.
* Size of the employer’s business.
* Nature of the employer’s business.
* In a hostile work environment claim, whether a reasonable person in the position of the plaintiff would have thought the environment to be hostile.
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.
Dispelling Sexual Harassment Myths
* Only women can be harassed. This is not true. Courts have previously ruled that a man can be harassed by a woman, although such a situation is slightly more rare than a male harassing a woman.
* A woman can’t harass another woman and a man can’t harass another man. This is not true. The U.S. Supreme Court has recognized that illegal sexual harassment can occur between people of the same sex.
* Sexual harassment can only occur in a workplace. This is not true. The U.S. Supreme Court has 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 take action.