Sexual Harassment in the Workplace

Sexual Harassment Definition

Sexual harassment in the workplace is a result of offensive, unwelcome sexual behavior at work. It's often more about power than sex per se.

Regardless, the key factor that turns a sexual behavior at work into the legal definition of sexual harassment in the workplace, is that it is unwelcome by the victim.

Generally, there are two types of unwelcome sexual behaviors in the workplace that are unlawful. One type is referred to as quid pro quo sexual harassment and the other is referred to as hostile-environment sexual harassment, meaning that it creates a hostile work environment.

Both types include unwelcome sexual advances, sexual-favor requests and other offensive behavior of a sexual nature, under any of the following conditions.

• Sexual harassment unreasonably interferes with the victim's job performance, or creates an intimidating, offensive, abusive or hostile work environment for either the victim or witnesses.
• Submission to sexual harassment is explicitly or implicitly a term or condition of the victim's employment.
• Submission to or rejection of sexual harassment by the victim is the basis for employment decisions made by the harasser that affect the victim.

The information in the list above was paraphrased from guidelines provided by the U.S. Equal Employment Opportunity Commission (EEOC). To put it more simply, sexual harassment is any offensive, sex-based behavior that no reasonable employee should have to endure. Examples include unwelcome:

• Innuendoes, jokes or gestures of a sexual nature
• Displaying of sexually-suggestive objects, photos or drawings
• Flirting
• Touching or other bodily contact
• Blocking or impeding physical movement

However, not all unwelcome sexual conduct in the workplace amounts to actionable sexual harassment. The courts must consider that, flattering or not, sexual attraction is biologically normal even in the workplace. Subsequently, the legal definition is still evolving as more court decisions come to light.

For example, only one or two incidents of unwelcome sexual conduct, such as a couple of flirtations or innuendoes, might not constitute actionable sexual harassment. Incidents typically must be so pervasive or severe, that they detrimentally alter the victim's conditions of employment. Additionally:

• Employees who have a history of voluntarily engaging in sexual behavior at work, might not have strong legal cases if they later sue for sexual harassment in the workplace.
• Employers are not likely to be liable when they have rock-solid, written, anti-harassment reporting and remedy procedures in place and made employees aware of them, but employees who've alleged workplace sexual harassment didn't follow the procedures before taking legal action.

If you reasonably believe that you are a victim of sexual harassment in the workplace, you'll likely have a stronger legal case if you first follow your employer's anti-harassment procedures to the letter (if they exist) and then take legal action if following the procedures doesn't stop the harassment. Otherwise, your employer might successfully use the so-called Faragher-Ellerth defense against you.

However, you have the right to contact the EEOC or consult a lawyer for guidance at anytime, while being protected from employer retaliation. Lawyers often take workplace sexual harassment cases on contingency. More information is on the next page.

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