It can be difficult to know when someone’s actions are “sexual harassment.” This can be especially true when a culture of inappropriate behavior is engrained in a workplace. However, this does not invalidate the illegality, or serious nature, of sexual harassment in the workplace. Further, the timing of any sexual harassment reports can be very important. Our experienced employment law attorneys can help you navigate this process. To begin, here are some examples of sexual harassment in the workplace:
Common Examples
Sharing inappropriate sexual images, texts, or videos
Lewd remarks
Groping
Sexist, generalized comments
Making inappropriate gestures
Unwanted touching (e.g., placing hand on an employee’s back)
Inappropriate, repeated comments about an employee’s appearance
Other Examples
Asking about an employee’s sex life
Circulating rumors about an employee’s sex life
Repeatedly requesting dates
Indirect harassment
Indirect harassment occurs when a secondary person is offended by the harassing or inappropriate actions of another.
What is "Title VII"?
Claims for workplace sexual harassment are often brought under a federal law known as “Title VII”. Title VII is part of the Civil Rights Act of 1964, a larger federal law. Title VII is important for sexual harassment claims because it prohibits discrimination by covered employers on the “basis of race, color, religion, sex, or national origin.” Title VII's language prohibiting discrimination based on sex also prohibits sexual harassment in the workplace.
How does Title VII define sexual harassment? Title VII prohibits discrimination on the basis of sex. Courts will ask whether[1]:
A victim of sexual harassment experienced “pervasive and regular” discrimination based on her sex; and
The conduct detrimentally affected the victim in a manner which would similarly impact a “reasonable person” in an equivalent situation.
Co-workers, supervisors, subordinates, customers, or even contractors can all create a hostile work environment.
How do courts know when someone’s actions are considered sexual harassment?
When a Plaintiff brings a Title VII claim, courts recognize two kinds of sexual harassment:
"Quid pro quo" harassment: Involves the conditioning of employment benefits on sexual favors
"Hostile work environment": While not affecting economic benefits, this harassment creates a hostile or offensive working environment.
If a Plaintiff brings a “hostile work environment” claim, the court will look at the “totality of the circumstances.” This means that the court will analyze the “surrounding circumstances, expectations, and relationships” which are not captured by words or actions alone. [2] If there are multiple incidents of sexual harassment, a court will look at these events as a whole. The court will not evaluate whether each incident, standing alone, creates a hostile work environment. Courts look to the “totality of the circumstances” to more appropriately determine whether a reasonable person would find the at-issue workplace conduct severely hostile or abusive.
Is an employer always liable?
For starters, it is important to be aware of your employer’s sexual harassment policy: Collect a copy of your employer’s sexual harassment policy. Storing a copy of this policy at home, or on a personal email address, will allow you to access this copy should you leave or get fired from your job. This policy may be a crucial document should you decide to report sexual harassment in the workplace. Ultimately, there are a number of factors which determine when an employer is liable for sexual harassment.
When a supervisor with immediate (or higher) authority over an employee creates a hostile work environment, an employer may be liable for sexual harassment. [3] In Faragher v. City of Boca Raton, the United States Supreme Court created a standard of vicarious liability for sexual harassment cases. Vicarious liability means that an employer may be financially liable for the conduct of others. Because of Faragher, courts may also evaluate whether the employer has a defense to reduce civil liability, known as an “affirmative defense.” To raise this affirmative defense, an employer must show that: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
As a result, a court may evaluate whether an employer distributed an anti-harassment policy and any steps taken by the employer to address sexually harassing behavior. This defense is not available when the supervisor's harassment results in a “discharge, demotion, or undesirable reassignment.”
Sexual harassment in the workplace can be a traumatic experience. You don’t have to go through this process alone. At Manes & Narahari, LLC, our experienced employment law attorneys can help. For a free consultation, clal us at (412) 626-5626 or by email at lawyer@manesnarahari.com.
Sources:
[1]: Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 57, 106 S. Ct. 2399, 2400, 91 L. Ed. 2d 49 (1986).
[2]: Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999).
[3]: Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998).
