Sexual harassment is a form of sex discrimination that violates federal law and also violates many state and city laws. No person or occupation is immune from sexual harassment. The purpose of most laws that prohibit sexual harassment is to protect workers - both female and male – regardless of whether the worker is highly paid or not and regardless of the gender of the harasser.
Two Forms of Sexual Harassment in the Workplace
Examples of Factors That May Create a “Sexually Hostile Environment” in the Workplace
The Impact of Sexual Harassment
Two Forms of Sexual Harassment in the Workplace
There are two classic forms of sexual harassment claims:(1) ‘Quid Pro Quo’ Claims: The term "quid pro quo," Latin for "this for that," refers to situations in which submission to or rejection of sexual favors is used as the basis for employment decisions about you or is made a condition of your employment. For example, it is quid pro quo harassment if a boss, supervisor or someone with authority either demands or implies that you must provide sexual favors in return for being hired, keeping your job, or getting a promotion. The key inquiry is whether or not the harassment resulted in a tangible employment action.
A "tangible employment action" means a significant change in employment status. Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment.
Basically, employment action qualifies as "tangible" if it results in a significant change in your employment status. For example, significantly changing your duties in your existing job is a tangible employment action regardless of whether you keep the same salary and benefits. Similarly, changing your duties in a way that blocks your opportunity for promotion or salary increases also is a tangible employment action.
On the other hand, an employment action is not "tangible" if it results in only an insignificant change in your employment status. For example, altering your job title does not qualify as a tangible employment action if there is no change in your salary, benefits, duties, or prestige, and the only effect is a bruised ego. However, if there is a significant change in the status of the position because the new title is less prestigious and thereby effectively constitutes a demotion, this would be a tangible employment action.
(2) Hostile Work Environment Claims—Unlike quid pro quo claims, a hostile work environment results from inappropriate behavior that is sufficiently severe or pervasive to create an intimidating, hostile, or offensive work environment.
Even if there has not been a tangible employment action, sexual harassment can still be against the law if it is severe or pervasive enough to alter the conditions of your employment and create an abusive working environment for you.
Some of the factors which may affect this determination include:
whether the conduct was motivated by animus based on your sex (this is a must); whether the conduct was verbal or physical, or both (any unwelcome touching is taken very seriously by courts); whether offensive but trivial conduct that occurred frequently; whether a “reasonable person” (as opposed to one with very thin skin) would find the conduct hostile and patently offensive; whether the alleged harasser was a co-worker or a supervisor (if a coworker, you ordinarily have the duty to report it to the employer and give the employer the opportunity to correct it); whether the others joined in perpetrating the harassment so that there truly was a “hostile environment”; and whether the harassment was directed at more than one individual. Claims of hostile work environment are very “fact intensive” and it is not possible to describe all of the circumstances that are severe or pervasive enough to constitute a legal violation. The standard for determining whether the conduct is enough to create a hostile environment is that of a "reasonable person," with consideration given to the context in which the alleged harassment took place. This objective standard guards against claims brought by hypersensitive people who are more easily offended than most, while also recognizing that from the victim's perspective, certain conduct can cause a hostile work environment even if some people rely on stereotyped notions of acceptable workplace behavior to conclude the conduct is harmless or insignificant.
Despite detailed federal and state laws that define harassment, identifying and developing appropriate and persuasive proof of sexual harassment is usually complicated. Factors that may seem irrelevant to the layperson may in fact be highly relevant. Similarly, factors that seem crucial to a layperson might in fact have little significance to the weight of a legal claim. Expert advice and counseling can demystify the process and help you decide on the best course of action to meet your needs.
Examples of Factors That May Create a “Sexually Hostile Environment” in the Workplace
Conduct that creates a sexually hostile environment occurs in an endless variety of situations. These are just some examples of sexual harassment, not intended to be all inclusive.
Pervasive sexually suggestive or crude jokes, gestures, comments on appearance or clothing.
Repeated unwelcome intentional touching such as scratching or patting a coworker's back, grabbing employee around the waist, or interfering with an employee's ability to move. If the conduct is severe, such as grabbing one’s breasts, then one or two incidents are probably enough.
Requests to engage in sexual activity or for sexual favors.
Continued unwelcome requests for meetings outside the workplace after you have made it clear that they are not welcome.
Repeated transmitting or posting emails or pictures of a sexual or other harassment-related nature, especially after there has been an objection.
Repeated display of sexually suggestive objects, pictures, or posters.
Combination of several of the above.
The Impact of Sexual Harassment
Sexual harassment causes real harm, both monetary (losing pay, a promotion, or other harm to one’s career path), and can also have a serious and negative impact on the employee’s physical and emotional health. The latter is called “emotional injury” or “pain and suffering” and is an element of the damage calculation in most sexual harassment claims. The effects frequently reported by women (who make up the largest percentage of victims of sexual harassment) include anxiety, depression, sleep disorders, weight loss or gain, loss of appetite, and other neurological and health disorders. In some instances, there has been a link between sexual harassment and Post-Traumatic Stress Disorder.
There are many different ways for a victim of sexual harassment to respond to the emotional injury. One way is to seek psychological help, and that is usually at least part of a very positive response. There may also be a natural desire to do things like trying to escape the harassing behavior by taking sick leave or leave without pay, or even transferring to a less desirable assignment or job, or even quitting altogether. These are not necessarily in your best interest and might even prejudice your legal rights. You should seek legal advice before you do any of them so that you know what your options are and the risks and benefits of choosing one of the various courses of action available to you.
If you would like to read about recent case law developments
regarding sexual harassment, please click here.