What Constitutes Sexual Harassment?

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 What Constitutes Sexual Harassment?

Sexual harassment is unwelcome verbal, visual,, or physical conduct of a sexual nature that is severe or pervasive and affects working conditions. Federal law Title VII of the Civil Rights Act of 1964 forbids sexual harassment in the workplace. Title VII applies to private employers with more than 15 employees, state and local governments, labor unions, and the federal government.

Harassment becomes illegal when a victim experiences behavior suggesting that either submitting to or rejecting the behavior, explicitly or implicitly, does one of the following:

  • It affects the person’s employment conditions
  • Interferes unreasonably with the person’s work performance
  • Creates an intimidating, hostile, or offensive work environment

So, for example, if a supervisor somehow indicates that for an employee to keep their job, the employee must provide sexual favors to the supervisor, this is sexual harassment. The victim could reasonably understand that rejecting the supervisor’s demand would lead to dismissal from the job.

Certain types of behavior are considered minor and can be brushed off if they occur on a very limited basis. For example, a one-time compliment saying that a person’s clothing is attractive does not amount to harassment. However, if the behavior is repeated, it may become illegal harassment.

Harassment is illegal when it is frequent, severe, or intimidating to create a “hostile or offensive” work environment. Some of the behaviors that can qualify as harassment are as follows:

  • Jokes of a sexual nature
  • Comments about a person’s body
  • Touching another person’s clothing or body
  • Repeated requests for dates after being turned down
  • Requests for sexual favors
  • Spreading rumors about a person’s sex life

Improper use of pictures, screensavers, or emails of a sexual nature can be harassment. For example, a person’s coworker invites them to look at something work-related on their computer. When the person arrives, a pornographic video is playing on the screen. This would be considered impermissible harassment.

A common type of harassment is when the employer tolerates a hostile workplace. This could be a workplace where the employees tend to use coarse, obscene language and repeatedly make joking sexual innuendos or gender-related insults.

Another example of a hostile workplace: in a common area like a kitchen, some employees have placed posters of nude women on the walls. When the victim complains to the manager, the manager brushes it off, telling the victim that they are just joking around and not to be overly sensitive. This is a hostile work environment, and it is considered a form of sexual harassment.

Some types of behavior are severe and unacceptable and thus should be addressed immediately, even if they have occurred only once:

  • Exposure to inappropriate body parts
  • Threats of physical violence
  • Battery, or attempted battery
  • Rape or attempted rape

Notably, harassment does not have to be sexual; it can include “offensive remarks” about a person’s gender. This means, for example, that a worker who constantly berates women can be guilty of sexual harassment.

The harasser does not have to be the victim’s supervisor. It can be a co-worker or even a client or customer of the employer. The harasser can be anyone associated with the victim’s place of employment.

The victim might not be the target of the harasser but rather is someone who works in the same environment and is victimized by witnessing the harassment.

Should All Sexually-Oriented Conversations Be Banned in the Workplace?

To expect people who work together never to flirt, tell off-color jokes on occasion, and even date is unrealistic. Therefore, it is not practical to attempt to ban all references to sex in the workplace, but it can be kept to a minimum.

A good general rule for employees is to be sensitive to the reactions of others. Is anyone offended by the joke that was just told? Did an employee become uncomfortable after a sex or gender comment by a supervisor?

It is a good idea to try to keep the following topics to a minimum, if not avoid them altogether:

  • Sexual behavior and comments of a sexual nature
  • Obscene language or lewd comments
  • Topics that may be offensive to others

Avoiding Sexual Harassment When Complimenting Co-Workers

Co-workers are often fearful of complimenting one another for fear of sexual harassment claims. Compliments by themselves are not illegal, but if they focus on a person’s appearance rather than on the quality of the person’s work, they could be viewed as sexual harassment.

A person unsure about what may be appropriate behavior at their workplace should refer to their company’s sexual harassment policy. This can be found in an employee handbook or in the employee’s employment contract. The policy may list the appropriate and inappropriate behaviors, as well as the disciplinary actions for sexual harassment claims.

If written correctly, the policy will also inform employees about handling a sexual harassment problem, including to whom it should be reported and what will be done.

If a person is a victim of sexual harassment at work, it is a good idea to directly inform the harasser that the conduct is unwelcome and that the person wants it to stop. The victim should document the request in writing and note the time and place the request was made, as well as how it was communicated.

A victim should also record the harassment when it occurs, noting the date, time, and place and the behavior that constituted the harassment.

A victim should make note of any details connected to the harassment. They should write down the names of witnesses and try to get written acknowledgments of what the witness saw or heard.

A victim should also learn about any employer complaint procedure or grievance system that is available and make use of it. They must track whether the incident was reported, to whom, when, and how.

An employer should take sexual harassment complaints seriously and have procedures in place for dealing with them. Failure to respond to a complaint effectively and promptly is one common way for a company to find itself being sued for sexual harassment.

If a person does not get a satisfactory response from their employer through its grievance system, they can file charges with the Equal Employment Opportunities Commission (EEOC). A charge must be filed within 180 days of the alleged discriminatory act.

However, in states where there is an anti-discrimination law and an agency authorized to provide relief for complaints of sexual harassment, a charge must be presented to that state or local agency first. In these states, a person may file charges with EEOC within 300 days of the discriminatory act or 30 days after receiving notice that the state or local agency has finished handling the charge, whichever is earlier.

Do I Need a Sexual Harassment Attorney?

Both investigating and proving a sexual harassment claim can be challenging. A lawyer will help you investigate your claim and inform you of your legal options.

An experienced sexual harassment lawyer will know if the state in which you live has an anti-sexual harassment law and an agency that enforces it. Your lawyer can help you file a complaint within the deadlines for sexual harassment claims appropriate to your state.

If working through the state does not bring relief, an attorney will know how to file a claim with the EEOC.

If you believe that you have been the victim of sexual harassment, you should, by all means, consult with an experienced harassment lawyer to get a professional opinion and guidance as to how to proceed.


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