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Sexual Harassment - Legal Standards
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees. Sexual harassment can be unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual’s employment. These acts can also rise to the level of sexual harassment when they unreasonably interfere with an individual’s work performance or create a hostile or offensive work environment. This page will discuss the topic of sexual harassment and the relevant laws in greater detail. For more information on sex discrimination also see our sex discrimination page.
- What is sexual harassment?
- Which laws pertain to sexual harassment?
- Are there different types of sexual harassment?
- Can one incident of harassment or offensive behavior constitute sexual harassment?
- Does Title VII protect men from sexual harassment? What about same-sex harassment?
- What is sxual violence inthe workplace?
- Who is covered by the law?
- I was harassed by my boss. Is the company legally responsible?
- Who enforces the law?
- How is employer liability for sexual harassment structured under the law?
- What are the remedies available to me?
- How can I file a complaint?
- What will the EEOC do after I file a complaint?
Sexual harassment is a form of sex discrimination and violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, or
- Submission to or rejection of the conduct is used as a basis for employment decisions
- Conduct of a sexual nature has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
Unwelcome is the critical word; sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome.The first two examples of sexual harassment are sometimes referred to as "quid pro quo" harassment, or harassment resulting in a "tangible employment action."
In order for sexual harassment to be against the law, the company must employ 15 or more individuals, and the conduct must be sufficiently severe or pervasive so as to create an intimidating, hostile, or offensive work environment. This is called hostile environment harassment.
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Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals in hiring, firing, and other terms and conditions of employment, such as promotions, raises, and other job opportunities because of their sex. Courts have found that sexual harassment is a form of sex discrimination and therefore violates the laws against sex discrimination in the workplace.
Furthermore, some states have enacted laws that offer employees even more protection against sexual harassment than Title VII. For more information, check out your state’s relevant lawsor contact an employment lawyerin your state.
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Yes, generally there are two types of sexual harassment claims:
Quid pro quo sexual harassment: when employment decisions – like promotions, assignments, or keeping your job – are based on your willingness to submit to the sexual harassment.
Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature constitutes quid pro quo sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of employment or (2) submission or rejection of such conduct is used as the basis for employment decisions.
Hostile work environment claims: when sexual harassment makes your workplace environment intimidating, hostile, or offensive.
Unwelcome sexual advances, requests for sexual favors, and other verbal conduct of a sexual nature constitute hostile environment sexual harassment when the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or of creating an intimidating, hostile, or offensive working environment. Courts consider several factors to determine whether an environment is hostile, including:
- whether the conduct was verbal, physical, or both;
- how frequently it was repeated;
- whether the conduct was hostile or patently offensive;
- whether the alleged harasser was a co-worker or supervisor;
- whether others joined in perpetrating the harassment; and
- whether the harassment was directed at more than one individual
It depends. Quid pro quo cases may be considered sexual harassment when linked to the granting or denial of employment benefits. On the other hand, the conduct would have to be quite severe for a single incident or isolated incidents of offensive sexual conduct or remarks to rise to the level of a hostile environment. Hostile environment claims usually require proof of a pattern of offensive conduct. Nevertheless, a single and extremely severe incident of harassment may be sufficient to constitute a Title VII violation. A general rule of thumb is that the more severe the harassment is, the less likely it is that the victim will be required to show a repetitive series of incidents. This is especially true when the harassment is physical.
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Anyone can be a victim of sexual harassment. Sexual harassment is not limited by gender. The victim or the perpetrator may be a man or a woman, and his or her victim does not have to be of the opposite sex for Title VII to apply. So, a man might harass another man, and a woman might harass another woman.
Additionally, perpetrators can be anyone in the workplace, the term is not limited to direct supervisors. Behavior may still be considered sexual harassment regardless of whether the perpetrator is a direct supervisor, a co-worker, a supervisor in another area, or potentially a person not employed in the victim’s workplace. Similarly, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the conduct.
In the end, it is possible for males to sexually harass other males, and females can sexually harass other females. The key question the law asks is whether the conduct itself would have occurred if the victim had been of a different sex: is a male harasser harassing a male employee in a way that he would not harass a female – or is a female harasser harassing a female employee in a way that she would not harass a male employee? This important conclusion was reached by a unanimous U.S. Supreme Court several years ago in the case of Oncale v. Sundowner Offshore Services, Inc.
The sexual orientation of either the harasser or victim is not the only relevant factor to this analysis, as harassing conduct does not have to be motivated by sexual desire. It can also be demonstrated through the harasser's general hostility to one sex, or evidence showing that the alleged harasser in fact targeted only one sex.
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Sexual violence is divided into three categories:
(1) use of physical force to compel a person to engage in a sexual act against his or her will, whether or not the act is completed;
(2) attempted or completed sex act involving a person who is unable to understand the nature or condition of the act, to decline participate, or to communicate unwillingness to engage in the sexual act, e.g., because of illness, disability, or the influence of alcohol or other drugs, or because of intimidation or pressure; and
(3) abusive contact.
Given the dynamics of the working environment and the potential for intimidation based upon power relations between employees and their supervisors or as between co-workers, sexual violence in the workplace is a real problem. The United States Department of Justice estimates that eight percent of all rapes occur while the victim is working.
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Title VII covers all private employers, state and local governments, and educational institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
Many states also make it illegal to discriminate on the basis of sex; some even require a fewer number of employees for harassment claims than are required for other types of discrimination claims. For more information, please see our page on the minimum number of employees needed to file a claim under your state law.
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An employer is always legally responsible for harassment by a supervisor that culminates in a tangible employment action. The company cannot avoid legal liability on the basis that you did not complain about the harassment, or because it took other steps designed to discourage workplace harassment. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action is equivalent to an act of the employer.
If you have been harassed by a supervisor, you should consult with an attorney to determine whether you have been subjected to a tangible employment action. If you have been, then you would be entitled to pursue a lawsuit to recover for the harm you have suffered, including lost wages and psychological harm. (See question 34 for further information about legal remedies.)
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The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for investigating charges of job discrimination related to sex in workplaces of 15 or more employees. Most states also have their own agencies that enforce state laws against discrimination.
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Employers can be legally responsible for sexual harassment against their employees and liable to them for damages. Liability depends on the type of harassment, and who committed it.
Harassment by a supervisor:
If the harassment results in a tangible employment action (such as firing, demotion, or unfavorable changes in assignment), the employer is liable.
If the harassment is a hostile work environment, then the employer can also be liable, but it has a possible defense, if it can show that the employer exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the company's preventive or corrective measures.
Harassment by a co-worker:
The employer is liable if it knew or should have known about the harassment, unless it took immediate and appropriate corrective action. Significant monetary damages are possible and not uncommon in sexual harassment cases. Victims of harassment may receive both compensatory and punitive damages, and they are entitled to a trial by jury.
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Victims of sexual harassment can recover remedies including:
- back pay;
- front pay;
- compensatory damages (emotional pain and suffering);
- punitive damages (damages to punish the employer);
- other actions that will make an individual "whole" (in the condition she or he would have been but for the harassment).
Remedies also may include payment of:
- attorneys' fees;
- expert witness fees; and
- court costs.
An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading. The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.
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For more information on filing a complaint for sexual harassment, select your state from the map or list below.
After you have filed a complaint, the EEOC will notify your employer that you have filed a charge and will begin an investigation into your complaint. The EEOC may then a take a number of different paths. First, the EEOC may attempt to settle your complaint or refer you and your employer to a mediator. Second, if the EEOC is unable to reach a settlement both parties agree on, and the defendant is a private employer, the EEOC may file a lawsuit in federal court. Finally, the EEOC may also choose to simply dismiss the charge. When a charge is dismissed, or if the EEOC is unable to reach an agreement to settle the complaint, the EEOC will issue a notice to you advising you of your right to sue in court. This notice is called a “right-to-sue” letter. If you want to file a lawsuit before the EEOC completes its process, you may request a right-to-sue letter.
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