What is Sexual Harassment?
Any unwelcome sexual advance or conduct, when:
- submission to the advance or conduct is made explicitly or implicitly a condition of employment,
- submission to or rejection of the advance or conduct is used as a basis for employment decisions, or
- the advance or conduct unreasonably interferes with an employee’s work performance by creating an intimidating, hostile, or offensive work environment.
Sexual harassment exists in two forms: “quid pro quo” or “hostile work environment.”
- Quid pro quo means “this for that” and applies when a supervisor seeks sexual favors either:
- in return for a job benefit (promotion or raise), for example, a manager tells her employee that she will give him a raise if he goes on a date with her, or
- to avoid an adverse employment action (a demotion or pay cut), for example, an employee is passed over for a promotion after rejecting her supervisor’s advances.
- Hostile Work Environment claims stem from harassment in the workplace that is unwelcome, based on protected class status, severe or pervasive enough to change the conditions of employment and creates an abusive environment. Importantly, the conduct need not be targeted at the offended individual to give rise to a hostile work environment claim.
- Examples: Turning work discussions into sexual topics or repeatedly asking out an employee who is not interested, or continued offensive language between co-workers in the presence of an offended third party co-worker. Note that hostile work environment is not limited to sexual advances or conduct and will be discussed further in an upcoming blog post.
Verbal and Non-Verbal Harassment
Sexual harassment comes in many forms and is not limited to physical actions. It can include verbal or non-verbal conduct that rises to the level of being “severe or pervasive.”
- Physical Harassment. Touching or brushing against an individual’s clothing, body, or hair; initiating unwanted sexual activity, such as kissing, touching, or hugging; rubbing or touching anyone sexually in the presence of another; or exposing oneself.
- Verbal Harassment. Repeating requests for a date with someone who has not returned an interest; telling unwelcome jokes or stories, often with sexual innuendo; initiating unwelcome flirtations; making or using derogatory comments, epithets, slurs, and jokes; making graphic verbal commentaries about an individual’s body or using sexually degrading words to describe an individual; using expressions that can be belittling, such as “honey,” “dear,” “sweetheart,” or “lady supervisor.”
- Non-Verbal Harassment. Staring or looking someone up and down; blocking or impeding an individual’s movement; following someone inappropriately; giving unwelcome gifts; making sexual gestures; displaying sexually suggestive objects, pictures, cartoons, books, or magazines; winking, blowing kisses, or licking lips; standing or sitting too close to someone.
Gender is Irrelevant
Men can harass women. Women can harass men. Men can harass men. Women can harass women.
Location Does Not Matter
Sexual harassment can occur outside the workplace, for example during annual meetings, business trips, holiday parties, client events, or sporting events, and can even occur online or through social media.
Today’s employers cannot hide behind claims of “we did not know we needed to do anything” when addressing sexual harassment claims. In failing to take steps to prevent harassment, employers are opening themselves up to claims that are resulting in increasing numbers of verdicts for employees.
Employers that allow harassment risk litigation and big payouts. It’s an issue employers can, and should, strive to address.
We will cover steps employers should take to prevent and address sexual harassment in our next post.
In the meantime, let us know if we can help.
