Sexual Harassment

Sexual harassment is a form of sex discrimination. It is offensive conduct directed at an employee simply because of his or her sex. It includes unwanted sexual advances, requests for sexual favors and any other conduct that unreasonably interferes with the employee’s work performance. Two types of sexual harassment exist: quid pro quo and hostile environment.

Quid pro quo (which simply means something for something) is the easier claim to prove. It occurs when either a supervisor or employee offers some tangible work benefit in exchange for sexual favors or retaliates against the employee for not accepting sexual favors.

Although hostile-environment cases are more common, they are more complicated. In such a case, the employee must show that the working conditions were both objectively and subjectively offensive and that the conduct was severe or pervasive.

Objectively offensive means a reasonable person would find the conduct offensive; subjectively offensive means conduct was personally offensive to the person claiming the harassment.

Severe or pervasive means that the employee’s working conditions have been altered. Two important factors that courts will look at here are whether physical contact was made and how long the conduct lasted. Thus, a one-time incident — even one that resulted in physical contact — is not likely to rise to the level of a hostile environment.

Every case is different, and courts will look at the whole record to determine whether sexual harassment has occurred. For instance, in the Supreme Court case Faragher v. City of Boca Raton, sexual harassment was found where a lifeguard supervisor made “frequent, vulgar references to women and sexual matters” and put his arm around the plaintiff and “his hand on her buttocks.” On the other hand, in Saxton v. AT&T, the 7th U.S. Circuit Court of Appealsdid not find sexual harassment even though the defendant had, on more than one occasion, rubbed the plaintiff’s leg, kissed her without consent and leapt out from behind bushes to scare her.

How to Prevent a Sexual Harassment Claim

The best way to guard against a sexual harassment claim is to implement policies and procedures that aim to prevent sexual harassment. The main way to do this is to educate employees about what constitutes sexual harassment and make it clear that it will never be tolerated or ignored.

Establishing an easy-to-follow grievance procedure helps offended parties know exactly how to protect themselves or co-workers. This procedure should be added to the general employee handbook or detailed in a standard set of official hiring memos.

The same laws that protect employees against sexual discrimination at work also protect employees who file such claims. In other words, retaliation for filing a discrimination claim is against the law.

If a sexual harassment claim is filed, the employer has certain defenses available. A basic defense is that the conduct was not unwelcome. If the conduct is determined to be not unwelcome, regardless of how pervasive it appears or how frequently it occurs, it is not considered harassment.

Even if harassment does occur, the employer can avoid liability if it shows:

• it took reasonable steps to prevent and promptly correct sexual harassment in the workplace,
• the employee failed to take advantage of the employer’s preventive or corrective measures. This particular defense shows why it is crucial that an employer stress the importance of sexual harassment, deal with it promptly and implement grievance procedures.

Important Facts Regarding Sexual Harassment Charges

• The party accused of sexual harassment in the workplace is not always an immediate supervisor. It may be a co-worker, client of the company, supervisor from another department or agent of the employer.
• The party who files a harassment claim does not need to be the actual party harassed. An employee who is negatively affected by sexual harassment that recently occurred or is still occurring somewhere in the workplace may file a claim. For example, if an employee has evidence that a co-worker is having sexual relations with the employee’s immediate boss and believes that this relationship is the reason the employee was not promoted, he or she may file a sexual-discrimination case.
• The party who files a harassment claim is not required to file based on job loss or other economic losses — the unwanted pressure and stress from the harassment are the things that are actionable. Likewise, the ripple effect of the harassment can leave others rightfully believing that they are being forced to work in what is legally known as a hostile work environment. This type of environment can upset the balance of authority and create improper favoritism.
• Sexual discrimination is not always found where a history of consensual sex or fraternizing is shown.
• A successful claim of sexual harassment often involves proof that the offending party was told one or more times to stop the unwanted behavior immediately and to never repeat it.

Employees who believe they’ve been sexually harassed must understand that the Equal Employment Opportunity Commission, state courts and cities with their own ordinances review all such claims on a case-by-case basis.

Last update: Nov. 5, 2008