Sexual Harassment in the Workplace

Excerpted from Your Rights at Work by Richard C. Busse © 2005

Sexual harassment is a type of sex discrimination. It is prohibited by both state and federal law. Both men and women are legally protected from sex discrimination. Same sex sexual harassment is also prohibited.

As a matter of a working definition, sexual harassment is any verbal or physical conduct of a sexual nature that is unwelcome, and is both objectively and subjectively offensive. In other words, it is an act or condition a reasonable person would find offensive and one the victim found offensive as well.

While there is no law against sexual activity in the workplace that is welcome, the Supreme Court has said that conduct can be unwelcome for Title VII purposes even though the victim submits to it. The Supreme Court has recognized that to submit to sexual advances out of fear of losing one’s job does not make the conduct welcome. Thus, the issue in a sexual harassment case is whether the harassment is unwelcome, not whether the victim consents.

It does not necessarily need to be verbally expressed that the conduct is unwelcome. Courts will take into account nonverbal communication such as ignoring or walking away from the harasser. Further, it can be unwelcome even though the victim formerly participated in the conduct, so long as its unwelcomeness was later communicated.

Sexual harassment can result in liability not only when you are terminated, demoted, or refused a pay increase or promotion because of it, but also where it creates a hostile working environment. However, the Supreme Court has made it clear that not every act of a sexual nature that is unwelcome and offensive will be actionable. It has said that offhand comments, simple teasing, and isolated incidents, unless extremely serious, will not amount to liability.

In order for there to be liability for creating a hostile working environment, the harassment must be sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive work environment. In order to determine whether that standard has been met, the court will examine the totality of the circumstances, including the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a mere offensive statement, and whether it interferes with an employee’s work performance.

Supervisors
In holding employers liable for supervisor sexual harassment, the Supreme Court differentiates between cases of sexual harassment that have resulted in a tangible employment action and others. A tangible employment action is one, for example, that has resulted in a termination, denial of a raise or promotion, or undeserved reassignment. As developed by the Supreme Court, the rule is that under Title VII, the employer is liable for the acts of a supervisor that involves a tangible employment action. But in a case of a hostile work environment where no tangible employment action has occurred, the employer may escape liability if it can prove:

? it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and,
? the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or to otherwise avoid the harm.

That is why it is so important to report the harassment. Otherwise, you may let the employer off the hook altogether.

Coworkers
The employer is liable for the acts of coworkers that it knows or should know is occurring, but is not responsible for acts of coworkers of which it is reasonably unaware. Therefore, if the employer has knowledge of prior incidents of sexual harassment by your harasser, it may be liable for that coworker’s harassment of you. Once you report the harassment, the employer is placed on notice and it may be liable for subsequent acts committed against you. Similarly, the employer may be liable for the acts of nonemployees in the workplace the employer knows or should know are occurring.

Once the employer has notice of the sexual harassment, certain responsibilities follow. It must take immediate and appropriate corrective action designed to end the harassment. While the courts give the employer a great deal of latitude to decide what action to take, the Ninth Circuit Court of Appeals, for example, has said the action must take some form of discipline.

Identifying Sexual Harassment
As stated earlier, it is important to report sexual harassment when it occurs. Otherwise, the harassment may continue. If it does and the employer knows nothing about it, the employer may not be legally responsible for what follows. Understandably, however, it is not something that is easy to do. In fact, it is not always easy to know when to report sexual harassment or even whether it is occurring.

In the beginning stages of the classic case of boss sexual harassment of a female, the victim first feels off-balance by the overture and unsure of, not only how she should respond, but also whether she even heard it right. Sexual predators are usually smart enough to mask their predatory intent behind words and conduct that are capable of double and triple interpretations, at least one of which is innocent. The victim does not want to appear to impute evil intent where there was none. So silence is the usual result.

The predator, not having heard a “no,” usually repeats the advance. Again, the victim is either reluctant to draw the worst conclusion or is reluctant to cause embarrassment to either party. She knows that if she restates the disguised advance in more direct terms and then rejects it “If you mean will I go out with you, the answer is no,” this leaves her open to the comeback “That’s not what I meant at all.” She also knows that if she rejects the overture, she may be candidly communicating her position, but may embarrass the inquirer and risk reprisal. So silence again seems the safe bet.

Feelings of guilt are also usually present. She usually wonders what she is doing to provoke these verbal and physical assaults. She usually blames herself and concludes she must be doing something to invite them. She may modify her behavior by wearing baggy clothes or less makeup or by distancing herself from the aggressor. During this process of self-examination, she again spares herself the trauma of confrontation.

At some point, however, she reaches the unequivocal conclusion—it’s not me; it’s him. She may reach the conclusion through conversations with a friend, coworker, relative, lawyer, psychologist, or simply by process of elimination. Usually, by this time, the probing and prodding has interfered with her work, has upset her emotionally, and probably has become an item of some discussion and debate at work. She has modified her behavior by learning to communicate her displeasure of the advances with nonverbal conduct. At first she ignored him. Then when he made a sexual remark, she would give him a dirty look or make a tsk tsk noise. Now she gets up and walks away.

Her boss grows impatient with what he views as her game-playing—she won’t say yes, but she hasn’t said no. His attitude changes: he tends to be short with her, his tone of voice hardens, his instructions become quick, and he tends to look for mistakes and more frequently calls them to her attention. There may be interludes of peace during cordial lunches in which he speaks of future advancement. These dangling carrots are usually followed by renewed sexual advances. When the advance is rejected, the retaliation intensifies. In this classic example of boss sexual h

As Featured in the Book

Your Rights at Work

Richard C. Busse, Attorney at Law

Your Rights at Work guides you through the maze of regulations that concern the interactions between employee and employer and employee rights. It teaches you how to protect yourself and when to use the rights you are entitled to.

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