What is Sexual Harassment?

A person working in an office is dreading the arrival of a coworker. The coworker has long made them feel uncomfortable but yesterday made an inappropriate comment about their body. Across the hall, a manager tells their young intern that management can provide great opportunities for those who "cooperate" and makes a sexually suggestive gesture. An individual sitting in the corner cubicle, meanwhile, has been offending several of their coworkers for months by looking at pornography at their desk. What do these 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 -- more to the point -- how do the Equal Employment Opportunity Commission (EEOC) and the courts review a sexual harassment claim?

What is the Law on 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 (some state laws may provide additional worker protections). Anyone affected by the offensive conduct in question, not just the person to whom it is directed, may be a victim. The EEOC defines the offense as follows:

"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."

The EEOC offers additional guidance on what constitutes sexual harassment, including the following:

• The conduct of the offender must be offensive and unwelcomed by the victim.
• Harassment may still occur when there is no economic injury to or discharge of the victim.
• 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.
• The victim and harasser may identify as any gender or as gender non-binary. The victim does not have to be of any specific gender identity.

Types of Harassment: Quid Pro Quo and Hostile 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 and thus rely on federal law.

Learn more about state-specific laws on our sexual harassment legal answers page.

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. This is particularly true in hostile work environment cases where it is more difficult than in quid pro quo situations to prove that harassment occurred.

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: Hostile Work Environment

The court will base its decision on the facts in the case, with an emphasis on context. 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 in order to stoke ideas. The California Supreme Court dismissed the suit, claiming the banter was all part of the "creative workplace" required for a comedy show with sexual themes.

Factors a court will consider in hostile work environment cases include the following:

• 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 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. The U.S. Supreme Court has 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. 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 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.