Sexual harassment in the workplace can take place in many ways, including:
- An unwanted sexual advance;
- A request for sexual favors;
- Any verbal or physical harassment of a sexual nature; or
- Offensive remarks about an individual’s sex.
A comment does not have to be sexual in nature to be considered sexual harassment, so long as it is an offensive comment regarding the individual’s sex. Sexual harassment may be committed by:
- A supervisor;
- A co-worker;
- An individual in the same company but in a different department; or
- A client or customer.
It is important to note that any individual of any gender can be a perpetrator of sexual harassment. Any individual of any gender may also be a victim of sexual harassment. Sexual harassment can even occur between parties of the same sex.
There are two main types of sexual harassment, including quid pro quo and creating a hostile work environment. Quid pro quo means “this for that” in Latin. In these cases, there is a request for an exchange of favors. In most cases, an employee is asked to engage in a sexual act in return for some kind of benefit such as a raise, promotion, or other benefit. It may also include an agreement not to take a negative action against an employee in exchange for the favor.
Quid pro quo sexual harassment may be both explicit or implicit. The conduct or words do not have to be explained in detail in order to be considered sexual harassment.
Conduct or words that create a hostile work environment is the second type of sexual harassment. The United States Supreme Court has held that the entirety of the circumstances must be considered in determining whether or not there is a hostile work environment. These circumstances may include:
- The frequency of the conduct;
- The severity of the conduct;
- Whether or not the conduct is physically threatening or humiliating; and
- Whether or not the conduct unreasonably interferes with an employee’s ability to do their job.
The psychological impact of the conduct on the victim may be considered in determining whether or not a hostile work environment existed. However, the Court held that the psychological impact on the victim must be considered as a part of the total circumstances.
Therefore, a single comment that occurs in conjunction with multiple physical acts or threats may amount to a hostile work environment. Whether or not sexual harassment rises to the level of a hostile work environment largely depends on the individual factors of the case. Many states have statutes and regulations that forbid sexual harassment in the workplace in addition to the federal protections.
What Conduct Does Not Constitute Sexual Harassment?
There are some examples of conduct that would not constitute sexual harassment. These include simple teasing comments, offhand comments, or non-serious, isolated incidents. For example, a one-time comment of, “you look nice today,” would not be considered sexual harassment.
Whether or not conduct is sexual harassment can also be determined by the context and manner in which the behavior was conducted. For example, politely asking a co-worker once for a date would not be considered sexual harassment. However, repeatedly asking that co-worker out on a date after being rejected can constitute sexual harassment.
Any consensual conduct is also not considered sexual harassment. For example, if two colleagues are involved in a romantic relationship and they engage in consensual sexual activity, that would not be considered sexual harassment. That would also be the case even if they broke up at a later time. However, it is important to note that engaging in sexual activity in the workplace can violate work policies and potentially create a hostile work environment for other employees.
What Should an Individual Do If They Have Been Sexually Harassed at Work?
It is important to understand that sexual harassment is unacceptable and the individual being harassed may take action. In some cases, a harasser may not know or understand that their actions are offensive. At the very least, the victim may wish to inform the harasser that their actions are inappropriate and unwelcome. This is not a requirement, of course.
A victim of sexual harassment should:
- Document any and all instances of sexual harassment, including:
- The date, time and nature of the sexual harassment that occurred;
- Any witnesses who observed the sexual harassment;
- Inform a supervisor, a manager, or the human resources department (HR) at their employer; and
- If the sexual harassment persists, file a claim with the HR department.
If these steps do not resolve the issue, the victim may file a claim with a government agency, such as the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate the claim and may take action against the employer. This is a requirement prior to initiating a lawsuit.
It is important to note that many state laws require a claimant, or victim, or exhaust all possible remedies prior to filing a lawsuit. A claim that is filed with a government agency must usually be filed within 180 days or 300 days from the last instance of sexual harassment. This timeline will depend on state laws, so it is important to consult an attorney to ensure the claim is filed in a timely manner.
If the EEOC does not pursue the claim on behalf of the claimant, they will provide them with a Right to Sue letter. This allows the claimant to file a lawsuit.
What are Some Consequences for Workplace Sexual Harassment?
Sexual harassment in the workplace includes situations of unwanted sexual advances or conduct that occurs between co-workers in the workplace. These behaviors interfere with an individual’s job and create a workplace environment that is intimidating, hostile, or offensive.
Sexual harassment in the workplace is extremely serious. It may have negative effects on the victim, including negative emotional effects. It is important to note that while a harasser may face serious consequences for the harassment, the employer or the victim may also face consequences.
What are Some Consequences the Sexual Harasser May Face?
If an individual engages in sexual harassment and that behavior is reported, the harasser may face serious consequences. At work, the harasser may be reprimanded, demoted, or terminated. Additionally, if the conduct rises to the level of sexual assault, the harasser may face criminal charges.
What are Some Consequences the Employer May Face?
If an employer is aware of sexual harassment in the workplace and ignores the issue or does not take appropriate action, there will most likely be consequences. For example, the victim may file a charge against the employer with the EEOC and a corresponding state agency.
This may result in an order from the agency that requires the employer to enact a policy change. It may even result in a civil lawsuit that costs the employer time and money.
Additionally, if the company is large or well-known, the charge may receive news coverage, especially in cases where multiple employees have reported incidents of harassment. This may cause damage to the employer’s reputation, both in the public realm and the professional realm.
What are Some Consequences the Sexual Harassment Victim May Face?
Although it may seem unfair, victims of sexual harassment may face consequences for reporting the incident. These are not the same types of consequences as the harasser or employer may face but, rather, are most likely consequences to be faced from their workplace. Examples may include:
- Being demoted;
- Being terminated;
- Losing benefits;
- A decrease in pay;
- Being passed up for promotions; or
- A constructive discharge, which occurs when an employer transfers an employee or makes their working conditions so unbearable it forces them to resign.
It is illegal for an employer to engage in these actions. If an individual has been sexually harassed, reported the issue, and is being punished in return, they may be able to sue their employer for retaliatory discharge, which is considered a type of wrongful termination.
Do I Need to Contact an Attorney for a Sexual Harassment Issue?
Yes, it is essential to have the assistance of an experienced harassment attorney for any issues with sexual harassment. If you have been sexually harassed at work and you want to take legal action, it is important to contact an attorney as soon as possible.
Your attorney will review your case, advise you of your rights, and assist you in taking the next steps. Additionally, your attorney will represent you in court, if necessary.
It is also important to employers to seek the advice of an attorney to review their sexual harassment policies and training requirements. An attorney can also represent an employer during any sexual harassment legal proceedings.