According to the Equal Employment Opportunity Commission (“EEOC”), sexual harassment is a specific form of sex discrimination that involves:
- Unwelcome sexual advances and/or contact;
- Requests for sexual favors; and
- Various other verbal and/or physical actions that are of a sexual nature, and are all considered to be illegal.
Workplace sexual harassment can be categorized in one of two ways. The first would be hostile work environment sexual harassment, and the second would be quid pro quo sexual harassment. Under Title VII of the CIvil Rights Act of 1964, as well as many laws at the state level, hostile work environments and quid pro quo sexual harassment are both considered to be illegal.
Hostile work environment harassment occurs when an employee is subjected:
- Demeaning jokes;
- Lewd remarks; and/or
The unwelcome conduct must be sufficiently severe or pervasive in order to constitute a hostile work environment. More specifically, what this means is that the conduct must be severe and/or pervasive enough to change the terms, conditions, and/or expectations of a comfortable workplace for an employee.
If the harasser is a supervisor, and the victim is subject to an adverse or negative employment action based on their gender, the employer will generally be liable for the supervisor’s harassment. This remains true even if the hostile work environment does not result in an adverse employment action, such as termination or demotion; the employer is still liable.
The liable employer may assert a defense, but they must prove that they took steps to both correct and prevent harassment. Additionally, the employer must prove that the assault victim failed to utilize these measures.
Quid pro quo sexual harassment refers to when a supervisor or employer requests or demands a sexual relationship and/or sexual favors from an employee. If the employee does not submit to the demands, the employer or supervisor threatens or actually takes a negative job action against the employee. Alternatively, if the employee submits to the demands, they are promised or receive a raise, promotion, and/or similar benefit.
A plaintiff can sue their employer for quid pro quo conduct sexual harassment, regardless of whether the plaintiff submitted to the employer’s demand. They will need to prove that, because of their gender, they were subject to an unwelcome request and/or demand that was sexual in nature.
They must also show specific job benefits were conditioned on acceptance of the harasser’s demands, or that employment decisions were based on either the acceptance or rejection of the demands. Additionally, they must demonstrate harm, and that the conduct of the harasser played a substantial part in causing that harm.
If the harasser is a supervisor, and the plaintiff is subject to an adverse action, the employer is liable for the quid pro quo harassment. This remains true even if the quid pro quo harassment is not accompanied by an adverse employment action; the employer is still held liable.
The employer may avoid liability by asserting the defense that they exercised due care in order to both correct and prevent harassment. They must also prove that the plaintiff failed to use the available measures.
To reiterate, sexual harassment may refer to any offensive comments and/or remarks that are made about a person’s gender; however, this is more commonly associated with gender discrimination. When sexual harassment occurs in a work setting, it is also considered to be a type of employment discrimination.
Regardless of the relationship between the parties or how the harassment is being classified, people of any gender can experience sexual harassment. It can happen between parties of the same sex or of a different sex as well. The defining factor in identifying sexual harassment would be the nature of the offending party or parties’ behavior.
What Is Discrimination Based On Gender?
Discrimination based on gender occurs when an employer treats an employee of one gender differently than employees of another gender. This different treatment may be intentional or unintentional, but still has the effect of discriminating against a particular gender.
The discrimination commonly takes the form of sexual harassment, but sexual harassment is not the only form of discrimination based on gender. An example of this would be refusing to promote employees who identify as one gender in favor of employees who identify as another gender. Another example of this would be failing to recognize and respect employees who are of a gender that does not conform to either female or male, such as refusing to use the employee’s correct pronouns.
What Is Disparate Impact Gender Discrimination? What Is Disparate Treatment Gender Discrimination?
The term is often used in cases that involve employment discrimination. As previously mentioned, Title VII of the Civil Rights Act prohibits organizations from discriminating against people because of personal and/or immutable characteristics; all people must be given equal opportunity for advancement, promotion, salary, and hiring.
However, although organizations may not be openly discriminatory, there are different types of discrimination that may still run counter to the Civil Rights Act. Two examples of such discriminatory practices include “disparate impact” and “disparate treatment.”
Disparate impact occurs when policies, practices, and/or rules that appear to be neutral actually result in a disproportionate impact on a protected group, or a protected class. The employer may not intend for their rules or policies to be discriminatory; however, disparate impact still occurs when the policy has a discriminatory effect. What this means is that the policy, even though it is written as neutral, is illegal when applied.
An example of this would be how a strength requirement for a job may inadvertently eliminate a disproportionate number of female applicants. Another example of this would be how requiring all candidates for a promotion must receive a certain score on a standardized test. Although the strength requirement or the standardized test have the appearance of being objective criteria, disparate impact could still apply if the practice has a disproportionate negative impact on members of a protected class.
While disparate impact is unintentional, disparate treatment discrimination is intentional. An employer discriminates in the terms, conditions, and privileges of employment, generally on the basis of gender. In order to prove discrimination, the plaintiff must prove that they were treated differently than a similarly situated employee; meaning, a person of a different gender who has the same or similar job title or duties.
Additionally, the plaintiff must prove that the different treatment constituted an adverse action. The employer must assert a non-discriminatory reason for the different treatment; if they cannot, the case will likely go in favor of the plaintiff. In some cases, the employer asserts a non-discriminatory reason that is false. In such cases, the plaintiff must show the stated reason was a “pretext,” and that the “real” reason was actually discriminatory.
While most disparate treatment claims are based on the complaints of individual employees, disparate impact claims are generally based on a company or organization’s actual policies or procedures. To reiterate, while disparate impact may be unintentional, if an unintentionally discriminating policy violates the law then the company is still held liable for the discriminatory results of the policy.
Do I Need An Attorney For Sexual Harassment And Discrimination?
If you are experiencing sexual harassment and/or discrimination, especially in the workplace, you should contact an experienced and local sexual harassment lawyer as soon as possible. An attorney can advise you regarding your legal rights and options according to your state’s specific laws. Finally, an attorney will also be able to represent you in court, as needed.