What is Sexual Harassment?

Sexual harassment is a serious problem in the American workplace. No one comes out a winner. The victimized employees experiences the crushing emotional injuries associated with sexual harassment, sometimes over a period of years, loses productivity and sometimes loses a job or opportunities. An alleged harasser may feel the sting of the laws and employer policies prohibiting sexual harassment, sometimes over behavior that they believed was not inappropriate. They may also lose productivity or be terminated from their employment. Employers lose productivity of the victim employee and, when it leads to the termination of the employee or the harasser, a trained and productive employee or employees. Employers will also lose productivity of supervisors and other employees who are caught up in the legal proceedings.

The question facing society in eliminating sexual harassment is how do we learn to draw the line between acceptable behavior and unlawful harassment? What are the types of actions an employer who wishes to eliminate sexual harassment will take?

Definition

In the federal context, sexual harassment is considered a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The EEOC defines sexual harassment to include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when: (1) an individual's submission to such conduct is explicitly or implicitly a term or condition of employment; (2) an individual's submission to or rejection of such conduct is used as the basis for employment decisions affecting the individual; or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance, or of creating an intimidating, hostile or offensive working 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: Situations in which tangible job benefits are granted or withheld based on an employee's submission to, or rejection of, unwelcome requests or conduct, based on a statutorily protected characteristic, such as sex. This type of harassment occurs when a supervisor or one in a position of authority 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. The acceptance or rejection of the harassment by an employee must be made an express or implied condition to the receipt of the job benefit or the cause of a tangible job detriment in order to create liability under this theory of sexual harassment.
• Hostile Work Environment: Situations in which the working environment is oppressive to members of a protected group because of the actions of coworkers, supervisors, or customers. This type of harassment sometimes occurs through the presence of demeaning or sexual photographs, jokes, or threats in the workplace. The inappropriate behavior or conduct must be pervasive to the level that it creates an intimidating and offensive work environment.
• Courts no longer will rely heavily on the differences between hostile environment and quid pro quo cases because these terms have limited utility under the current law of sexual harassment.

The U.S. Supreme Court has held that an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no tangible adverse job consequences, may still recover against the employer without showing that the employer is negligent or otherwise at fault for the supervisor's actions, thus adopting a vicarious liability standard.

The Court also noted that an employer may defend against an employee's claim of sexual harassment by establishing that it exercised reasonable care to prevent and promptly correct the alleged sexual harassment and that an employee unreasonably failed to take advantage of preventive or corrective opportunities or otherwise failed to avoid harm. No affirmative defense is available when the supervisor's harassment culminates in a tangible employment action.

Note: The defense now available to employers is why it is now much more important for employees who believe they are being harassed to seek out whether their employer has a policy prohibiting harassment and providing procedures for notifying the employer of the harassment and resolving the issue.

It is questionable whether the affirmative defense will protect an employer in the case of a single, severe instance of sexual harassment that cannot be anticipated.

Each state is different with regard to the protections provided to employees against sexual harassment. Some provide more protection than that provided by federal law. None may provide less.

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 individual facts of that situation, a rebuffed request for a date could constitute sexual harassment.

Factors for Review

Factors a court may consider in hostile work environment cases include:

1. Frequency of the alleged inappropriate behavior.
2. Time period over which the behavior occurred
3. Severity of the behavior.
4. Conduct of the victim, although it should be limited to relevant conduct observed in the workplace. For example, 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.
5. Context of the alleged harassment.
6. Size of the employer's business.
7. 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.

How Can You Tell If Your Employer Is Serious About Dealing with Sexual Harassment?

• Employers will minimize sexual and other harassment in the workplace claims by developing a comprehensive policy that prohibits all types of harassment in the workplace, and makes harassment an offense subject to discharge in its disciplinary policies. If an employer has not implemented a policy and procedures, it is not taking the problem seriously.
• The policy should set out a clear procedure providing a mechanism for complaints of harassment to be made, and promptly investigated and appropriately resolved. An employee, department, or officer of the company should be identified to accept complaints on behalf of the employer. There should be an alternative in case the identified employee or officer is the alleged harasser.
• The employer's policy should be disseminated to all new employees and periodically to existing employees at least annually.
• Employers should provide training on identifying and dealing with sexual harassment and require all employees, including management, to attend. In California, a certain amount of training of supervisors is mandatory. In workplaces in which sexual harassment is particularly likely, such as trade occupations with few women in formerly all male positions, the availability of such training is even more important.

Policies and procedures will be different for different employers. What may work in one office or workplace may not work for others. One size does not fit all.

Dispelling Some Sexual Harassment Myths

• Only women can be harassed. This is not true. Courts have previously ruled that a woman can harass a man, although such a situation is slightly less common than a male harassing a woman.
• A woman cannot harass another woman and a man cannot 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. There are an increasing number of cases that recognize such same-sex harassment where it is based on sexual stereotypes.
• 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, customer, 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.
• 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 educational institutions that accept federal funds violate the law, called Title IX, by sexually harassing students. A more recent case found that an employee could also sue for retaliation by the institution when he or she blows the whistle on violations of Title IX.

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