Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees. Sexual harassment can be unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual’s employment. These acts can also rise to the level of sexual harassment when they unreasonably interfere with an individual’s work performance or create a hostile or offensive work environment. This page will discuss the topic of sexual harassment and the relevant laws in greater detail.
1. What is sexual harassment? Sexual harassment is a form of sex discrimination and violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
Unwelcome is the critical word. Unwelcome means unwanted. Sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome.
Anyone, male or female, can be a victim of sexual harassment. The victim and the harasser can be a woman or a man, and they can be the same sex. A man might harass another man, a woman might harass another woman.
2. What kinds of behavior could be considered sexual harassment? What constitutes sexual harassment can vary depending on the situation and people involved. Sexual harassment might include unwelcome sexual advances or requests for sexual favors. Direct or indirect threats or bribes for sexual activity may be sexual harassment. Sexual innuendos and comments, or sexually suggestive jokes may be sexual harassment in some contexts. Unwelcome touching or brushing against a person, or displays of explicit material may be sexual harassment. Finally, attempted or completed sexual assault would be sexual harassment.
3. Which laws pertain to sexual harassment? Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals in hiring, firing, and other terms and conditions of employment, like promotions, raises, and other job opportunities because of their sex. Courts have found that sexual harassment is a form of sex discrimination and therefore violates the laws against sex discrimination in the workplace.
Sexual harassment as sex discrimination under Title VII is shown by proving that the harasser targeted one sex or displayed general hostility to one sex, without regard to which sex the harasser or victim are.
Some states have laws that offer employees protection against sexual harassment beyond Title VII.
4. Are there different types of sexual harassment claims? Yes, generally there are two types of sexual harassment claims:
Quid pro quo sexual harassment: when employment decisions – like promotions, assignments, or keeping your job – are based on your willingness to submit to the sexual harassment. Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:
Hostile work environment claims: when sexual harassment makes your workplace environment intimidating, hostile, or offensive. Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct is hostile environment sexual harassment when:
Courts consider several factors to determine whether an environment is hostile, including:
5. Who can be considered a harasser in the workplace? The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. In fact, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the offensive conduct.
6. Can one incident of harassment or offensive behavior constitute sexual harassment? It depends. Quid pro quo cases may be considered sexual harassment when linked to the granting or denial of employment benefits. On the other hand, the conduct would have to be quite severe for a single incident or isolated incidents of offensive sexual conduct or remarks to rise to the level of a hostile environment. Hostile environment claims usually require proof of a pattern of offensive conduct. Nevertheless, a single and extremely severe incident of harassment may be sufficient to constitute a Title VII violation. A general rule of thumb is that the more severe the harassment is, the less likely it is that the victim will be required to show a repetitive series of incidents. This is especially true when the harassment is physical.
7. What is sexual violence in the workplace? Sexual violence is divided into three categories:
Given the dynamics of the working environment and the potential for intimidation based upon power relations between employees and their supervisors or as between co-workers, sexual violence in the workplace is a real problem. The United States Department of Justice estimates that eight percent of all rapes occur while the victim is working.
8. Who is covered by the law? Title VII covers private employers, state and local governments, and educational institutions employing 15 or more people. These laws also cover private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.
Many states also make it illegal to discriminate on the basis of sex. Some states' harassment laws apply to even more employers than the laws on other types of discrimination because they cover employers with fewer employees that the discrimination laws.
9. I was harassed by my boss. Is the company legally responsible? An employer is always legally responsible for harassment by a supervisor that culminates in a tangible employment action. The company cannot avoid legal liability on the basis that you did not complain about the harassment, or because it took other steps designed to discourage workplace harassment. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action is equivalent to an act of the employer.
If you have been harassed by a supervisor, you should consult with an attorney to determine whether you have been subjected to a tangible employment action. If you have been, then you would be entitled to pursue a lawsuit to recover for the harm you have suffered, including lost wages and psychological harm.
10. Who enforces the law? The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for investigating charges of job discrimination related to sex in workplaces of 15 or more employees. Most states also have their own agencies that enforce state laws against discrimination.
11. How is employer liability for sexual harassment structured under the law? Employers can be legally responsible for sexual harassment against their employees and liable to them for damages. Liability depends on the type of harassment, and who committed it.
Harassment by a supervisor: If the harassment results in a tangible employment action (such as firing, demotion, or unfavorable changes in assignment), the employer is liable. If the harassment is a hostile work environment, then the employer can also be liable, but it has a possible defense, if it can show that the employer exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the company's preventive or corrective measures.
Harassment by a co-worker: The employer is liable if it knew or should have known about the harassment unless it took immediate and appropriate corrective action. Significant monetary damages are possible and not uncommon in sexual harassment cases. Victims of harassment may receive both compensatory and punitive damages, and they are entitled to a trial by jury.
12. What are the remedies available to me? Victims of sexual harassment can recover remedies including:
13. Tips when dealing with sexual harassment. Do not laugh it off. Tell the person that his or her behavior is inappropriate and/or offends you. Firmly refuse all invitations for dates or other personal inaction outside of work. Don’t engage in sexual banter or flirt in response.
Report harassment to your employer in writing. If there is a policy employees are supposed to follow when reporting harassment, you should follow the policy to the fullest extent possible. While you may not think complaining will do any good, your company may later claim it would have stopped the harassment if it had known about it, so reporting the conduct is very important to show that the company was aware of the harassment.
Write it down. As soon as you experience the harassment, start writing down exactly what happened. Be as specific as possible: write down dates, places, times, and possible witnesses to what happened. If possible, ask coworkers to also write down what the saw or heard, especially if the same thing is happening to them too. Others may read this written record at some point, so be as accurate and objective as possible. Do not keep the record at work, but at home or in some other safe place where you will have access to it in case something suddenly happens at work.
Keep copies of any records of your work performance, including copies of your performance evaluations and any memoranda or letters documenting the quality of your work. If you do not have copies of relevant documents, try to gather them (by legitimate means only). In some states and/or according to company policy, you are allowed to review your personnel file, so you should review your file. You should either make copies of relevant documents or take detailed notes of what is in the file, if you are not allowed to copy the contents.
Talk to others. If you can do so safely, talk to other people at work about the harassment. You may find witnesses, allies, or others that have been harassed by the same person or who would be willing to help support you. Tell supportive friends, family members, and colleagues about the abuse. Telling others about the harassment not only can give you much needed support, but it can also be important evidence later.
Seek counseling or medical treatment.