Sexual Harassment Application of the Law: Is This Sexual Harassment?
You might be wondering what terms like “hostile environment” or “supervisor” mean under Title IX, the following questions are meant to help give you an idea what types of cases may or may not be successful in a courtroom.
Behaviors rising to the level of sexual harassment can vary depending on the situation and the people involved. The following is a list of the most common forms of sexual harassment:
- Actual or attempted rape or sexual assault
- Unwanted pressure for sexual favors
- Unwanted deliberate touching, leaning over, cornering, or pinching
- Unwanted sexual looks or gestures
- Unwanted letters, telephone calls, or materials of a sexual nature
- Unwanted pressure for dates
- Unwanted sexual teasing, jokes, remarks, or questions
- Referring to an adult as a girl, hunk, doll, babe, or honey
- Whistling at someone
- Cat calls
- Sexual comments
- Turning work discussions to sexual topics
- Sexual innuendos or stories
- Asking about sexual fantasies preferences, or history
- Personal questions about social or sexual life
- Sexual comments about a person’s clothing, anatomy, or looks
- Kissing sounds, howling, and smacking lips
- Telling lies or spreading rumors about a person’s personal sex life
- Neck massage
- Touching an employee’s clothing, hair, or body
- Giving personal gifts
- Hanging around a person
- Hugging, kissing, patting, or stroking
- Touching or rubbing oneself sexually around another person
- Standing close or brushing up against a person
- Looking a person up and down (elevator eyes)
- Staring at someone
- Sexually suggestive signals
- Facial expressions, winking throwing kisses, or licking lips
- Making sexual gestures with hands or through body movements
Gender-based harassment is against the law, even if the conduct is not sexual in nature or not motivated by sexual desire. The conduct can still be considered unlawful harassment if it singles you out because of your gender. If the conduct you describe is severe and pervasive enough to create a hostile work environment for you, then it would be against the law. Similarly, harassment on the basis of race, color, religion, national origin, age, or disability can also violate the federal laws, which make it illegal to discriminate on those grounds. For more information, see our page on discrimination.
It is unlikely that all of you will be sued; however, you should still be concerned about the workplace environment you are a part of. Courts have generally held that the federal anti-discrimination law, Title VII, does not permit individuals to be sued, and even when it is permitted (under the laws in some states), it is less common in practice to sue individuals than it is to sue the employer, which is generally more likely to have significant financial resources.
Whether this language causes a hostile environment depends on whether it can be considered severe or pervasive, so the answer would depend in part on how frequent and severe the use of graphic language is in your workplace.
If it has been brought to your attention that at least one coworker finds the environment offensive, then there may be others who feel the same way, but who have not yet complained. Also, even if the situation is not severe or pervasive enough to justify a sexual harassment lawsuit, this does not prevent your employer from disciplining or terminating you and the others involved if it feels the conduct was inappropriate and/or violated company policy.
Some companies, in an effort to reduce and/or prevent lawsuits, have adopted a "zero tolerance" policy where sexual harassment is concerned, which has led to employees being disciplined or terminated for conduct that was previously tolerated at work. So it is probably wise to curb the use of language in the workplace that has previously caused coworker complaints. Even if it does not get you in trouble this time, it may in the future.
While this conduct may offend you, it may not be considered against the law; courts have generally declined to establish a "code of conduct" or make all conduct of a sexual nature in the workplace illegal. The answer might be different if your coworker posted photos from the magazine in a common area where everyone could see or that could not be avoided in the course of your work day, since that would more directly affect your work environment by forcing you to view sexually graphic material against your will.
If you have told your coworker that you find it offensive, and the situation continues, you may wish to discuss it with a coworker, supervisor, or human resources manager to determine whether others are offended, or whether your company has a policy that would be violated by this behavior. Perhaps a solution can be reached that does not involve filing a formal complaint or lawsuit.
The answer would likely depend on how explicit the jokes tend to be (some jokes are obviously more sexually graphic than others, which would affect a determination of the conduct's severity), or how frequent the jokes are told (which would affect pervasiveness). Simple teasing, offhand comments, or isolated incidents that are not extremely serious are not against the law, even if the comments are unwanted and/or offend someone.
If you have told your coworker that you find it offensive, and the situation continues, you may wish to discuss it with a coworker, supervisor, or human resources manager to determine whether others are also offended by the jokes, or whether your company has a policy that would be violated by this behavior. Perhaps a solution can be reached that does not involve filing a formal complaint or lawsuit.
In a situation where a supervisor is attempting to make submission to sexual activity a condition of your employment, conduct can be illegal in two cases; First if there is a tangible employment action, such as a termination, denial of promotion, demotion, transfer, disciplinary action, or other significant change in your employment status, than the is highly likely to be illegal. If there was no tangible employment action, then her conduct must have been severe or pervasive for it to be against the law. If the request only happened once, then it is unlikely to be considered pervasive; depending on the circumstances, it may or may not be considered severe.
You may wish to discuss what happened with a lawyer, coworker, supervisor, or human resources manager to determine whether you might have grounds for a lawsuit, or whether your company has a policy that would be violated by this behavior. Perhaps a solution can be reached that does not involve filing a formal complaint or lawsuit, such as a job transfer which would prevent you from working with this person on a daily basis.
Since one of the legal requirements for sexual harassment is that the conduct be "unwelcome," make sure your supervisor knows that you consider their conduct to be unwelcome. Tell the person that this behavior offends you. Firmly refuse all invitations for dates or other personal interaction outside of work. Don't engage in sexual banter or flirt back in response.
Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away, so if you do not feel comfortable talking to your supervisor in person, you may wish to prepare a letter to ensure that they know exactly how you feel.
If that doesn't work, you may want to tell your supervisor, your human resources department or some other department or person within your organization who has the power to stop the harassment. This does not require you to file a lawsuit or hire an attorney, and may be sufficient to resolve the problem without further legal action. However, you should be aware that the time deadline to file a legal complaint starts running on the date of the harassment, not the date which your company resolves (or fails to resolve) your complaint, so do not miss legal filing deadlines waiting on the company to resolve the situation. For more information about filing deadlines in your state, see our page on Sexual Harassment Legal Standards.
While it is not against the law to ask out or date a coworker, here are some of the considerations you should keep in mind:
anti-nepotism or dating policies: Your company may have a policy that prevents you, as a manager, from dating certain or all coworkers. While generally these policies are designed to prevent you from dating someone in your chain-of-command, be sure that you do not violate your company's policy, which may be stricter than the most common policies. Some companies now ask that you notify the company before dating a coworker, and some even now require that you sign a "relationship contract," indicating that the relationship is voluntary and consensual.
authority over employee: Even if you are not supervising the employee you hope to date, do you have any power over the conditions of her employment? Does she reasonably believe you have authority over her in some way? She might believe this if the chains of command are unclear, or because your job duties allow you to influence employment outside your chain of command. This could affect whether she feels free to accept or reject your request for a date.
advancement: If either of you are promoted, will that put her in your direct chain of command? If so, both of you should consider what that means. Will one of you be willing to change jobs or forgo advancement in the company? Will you be willing to risk charges of favoritism if you supervise her (if this is even allowed under company policy)?
breakup: If you do date successfully for a while, but later break up, what happens then? Will both of you be willing and able to interact normally in the workplace and face the pain potentially caused by seeing each other every day? Many harassment claims (whether legitimate or not) arise after a workplace relationship ends badly, either because one party persists in what is now considered unwelcome harassment after previously consensual conduct, or because one of the parties seeks revenge against the other.
These considerations can make workplace dating more difficult and more likely to raise legal issues than relationships where the parties do not work together. Furthermore, if she is directly in your chain of command, any tangible work action you take may be questioned following an expression of interest. These are all factors to keep in mind.
The issue of the "equal opportunity harasser" has caused some difficulty for courts where the issue has been raised. Since the law requires the conduct at issue to occur "because of sex," not merely that the conduct is sexual in nature, it is more difficult to prove that the behavior occurred because of sex when employees of both sexes are the victims of harassing conduct. Some courts have specifically rejected harassment claims where the evidence shows that employees of both sexes have been treated similarly, while other courts have rejected the employer's "equal opportunity harasser" defense when there were enough differences between the way male and female employees were harassed to fulfill the "because of sex" requirement.
However, regardless of the company's potential legal liability, most employers do not want this kind of conduct occurring in the workplace, because of its effect on morale, productivity and in maintaining a professional atmosphere, so you should consider reporting the conduct according to the company's harassment policy.
Unfortunately, this area of the law is not yet settled, though some kinds of LGBT discrimination may be illegal under federal law. Sexual orientation discrimination and sexual harassment often occur together where gay and lesbian employees have been the target of humiliating and degrading sexual comments in the workplace—comments which can focus on the victim's failure to fit traditional gender stereotypes of "masculinity" and "femininity."
However, courts have often focused on the differences between the two legal concepts to prevent gay and lesbian employees who have been harassed from having the same legal protections available to non-gay employees who have been subjected to similar comments. These courts have ruled that comments focused on the victim's sexual orientation represent sexual orientation discrimination, not covered under federal law, instead of sexual harassment, a form of sex discrimination that is covered under federal law. Other courts have ruled that these types of sexual comments, as they relate to gender stereotypes, are a form of illegal sex discrimination under federal law.
Recently the EEOC issued a statement that would protect LGBT individuals under Title VII. This has not yet been tested by a lawsuit, and the courts are not required to defer to the statements of an agency.
If you have been subjected to these types of comments, you may wish to consult with an attorney familiar with sexual harassment and/or sexual orientation discrimination law to determine what laws may offer legal protection in your state.
Even if the sexually suggestive language is not directed at you, if you are required to listen to it in your work environment, it may be considered hostile work environment harassment, and you could take all of the steps available to those who have harassing words directed specifically at them. However, if it were a purely private matter—your coworker is being pressured outside of work or when no other employees are around, and no other employees are being forced to listen to the sexually suggestive language, then generally only your coworker would have grounds to complain or pursue a harassment claim.
It depends. A company that was previously unaware of a harasser's conduct, and that took immediate and effective action once the harassing conduct was brought to the company's attention, is likely to successfully defend a lawsuit brought by a complaining employee where there has not been a tangible employment action against the employee. If there has not been a tangible employment action then you can only prevail by showing that the company was negligent in allowing the harassment to occur.
In this case, employers have two defenses available to them; first, they can argue that they have exercised reasonable care to prevent or correct any harassing behavior, and second, the company can allege that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer-provided.
Where there has been a tangible employment action, the company's response does not affect whether you can bring a legal claim. Also, if the transfer was not effective to stop the harassment (the harasser harasses people in his or her new department or location), then unless they take further action, the likelihood of a negligence finding increases.
Not only can sexual harassment be against the law, but retaliating (taking revenge) against someone for complaining about sexual harassment or for participating in an investigation of sexual harassment can be against the law as well.
Some examples of retaliation include:
- being forced to take an unpaid leave of absence after complaining about harassment, although the harasser continues to work;
- being reassigned to a less desirable position in the same or different department after you write a letter about harassment you have witnessed;
- having your hours cut or overtime taken away after you complain about harassment, if it can be shown that the lack of overtime assignments was related to your complaint rather than a business downturn or other business-related reason.
If your employer retaliates against you for complaining about sexual harassment or for participating as a witness in an investigation of sexual harassment, you may take any or all of the same steps suggested here for those who have been harassed. It may be more difficult to address your coworkers' poor treatment of you, unless you can show that your employer, through its managers or supervisors, has encouraged them to give you the silent treatment. If so, this may be additional evidence of retaliation. If not, you may want to enlist the assistance of a sympathetic coworker or supervisor to see if the situation can be improved.
This situation is unlikely to result in a successful claim, the law requires that the attention be “unwelcome,” and because you and your supervisor are engaged in a consensual relationship, courts might not consider you to meet the statutory definition of harassment. This would be considered a tangible employment action for sexual harassment claim purposes. You may want to talk to your supervisor or other resources within your department to see what you can do. Many offices are likely to view this behavior as inappropriate for a variety of reasons; perhaps they can remove you from your supervisor’s chain of command.
Yes, whether or not the person harassing you is a supervisor has a very real impact on the outcome of your case. Under the law a company is liable for any tangible employment action taken by a supervisor. A supervisor is an individual who is empowered by the employer to take a tangible work action against the victim. This means that unless the person you are interacting with can hire, fire, demote, promote, transfer, or otherwise affect your job in a “tangible” way, they will not be considered your supervisor, even if you take orders from them.
If harassment by a supervisor does not result in a tangible work action or if the person harassing you is a coworker, then you must show that the harassment created a hostile work environment, and that the employer was negligent in allowing the harassment to continue. The employer may effectively defend themselves by showing that they exercised reasonable care to prevent or correct any harassing behavior, or that you did not properly take advantage of the preventative or corrective opportunities the employer provided.
If you are unsure of whether or not the person harassing you is a supervisor, you may want to consult an attorney, or talk to your human resources department.
For more information on filing a complaint for sexual harassment, select your state from the map or list below.
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