The Equal Employment Opportunity commission (EEOC) defines Sexual
Harassment as unwelcome sexual advances, requests for sexual favors,
or verbal or physical conduct of a sexual nature, when submission to
such conduct is made, whether explicitly or implicitly, a term or
condition of an individual’s employment, submission to or rejection of
such conduct by an individual is used as the basis for employment
decisions, or when the conduct has the purpose or effect of
unreasonably interfering with an individual’s work performance or
creating an intimidating, hostile or offensive working environment.
Sexual harassment can include a wide variety of behavior and occurs on
various levels, ranging from:
- occasional comments, jokes, touching or gestures
- behavior that persists even after being issued a light, informal
warning or an isolated behavior that is more severe,
- repeated or persistent offensive behavior even after being issued
formal discipline, aggressive touching, or any behavior that is
clearly intended to cause offense, even if isolated.
There are two type of harassment under the legal definition:
1/ Quid-Pro-Quo Harassment
This is the when the employer makes sex a prerequisite to getting
something in the workplace. For example: ” sleep with me and you’ll
get the job.” That’s illegal. This type of sexual harassment is the
“casting couch” cliché. Quid-pro-quo can also include negatives. For
example, “sleep with me or you’re fired” is also illegal.
Obviously, the woman who is fired because she wouldn’t sleep with the
boss can sue.
Take for example a situation where the boss asks one of his assistants
to sleep with him in exchange for a promotion. She does it and gets
the promotion. Under the law, she has a claim, because her agreeing to
his sexual demands was a condition of the promotion. She also has a
claim if she refused and didn’t get the promotion.
However the conduct must be “offensive”. If two employees have a good
time exchanging sexual jokes, it would not be sexual harassment. If
one employee kept telling another employee sexual jokes that the
second employee found offensive, it would be sexual harassment. If two
employees dated and engaged in consensual sex, this would not be
sexual harassment. If one of the two then wanted to terminate the
relationship, and the other used the unequal relative terms and
conditions of employment of the work place to further the
relationship, this would be sexual harassment.
Jokes, pictures, touching, leering, unwanted requests for a date have
all been found by courts to be sexual harassment. Sexual harassment
can be between people of the same sex. Sexual harassment can be a
woman harassing a man.
Anyone who is offended by a sexually harassing environment may
theoretically sue. However, that employee’s offense must be
reasonable. An extremely sensitive person might not be able to
maintain a claim, because her feelings of having been offended were
The reasonableness is evaluated by a standard that is the same as a
person in the victim’s circumstances. For example, what a reasonable
woman might think is a hostile environment is not necessarily the same
as what a man might think is a hostile environment. If it’s a woman
who was harassed, it’s the woman’s point of view that counts.
Victims of sexual harassment can recover for their lost wages, future
lost wages, emotional distress, punitive damages, and attorneys fees.
2/ Hostile Workplace Environment
Hostile environment sexual harassment is a situation in which the
employer, supervisor, or co-worker or customer does or says things
that make the victim feel uncomfortable because of his or her sex.
Hostile environment sexual harassment does not need to include a
demand for an exchange of sex for a job benefit. It is the creation of
an “uncomfortable environment”.
If a fellow worker is the one doing the discrimination and harassment,
you should follow the company policy and report the conduct to your
supervisor and Human Resources. Report it in writing to have proof of
the date you reported it, and be sure to be specific about the exact
nature of the discrimination or harassment. Saying things like Joe is
bothering me or harassing me is not sufficient. Also, saying that Joe
called me the “N” word once is insufficient. Don’t retaliate back, or
you can be fired.
Anyone who is offended by a discriminatory or sexually harassing
hostile environment may theoretically sue. However, that employee’s
offense must be reasonable. An extremely sensitive person might not be
able to maintain a claim, if his or her feelings, that have been
offended, were not reasonable.
Again, victims of discrimination or sexual harassment can recover for
their lost wages, future lost wages, emotional distress, punitive
damages, and attorneys fees.
There are steps that employers are advised to take to protect
themselves from employee sexual harassment cases. They should:
· ensure that sexual harassment policies and procedures are in
compliance with current state and federal laws.
· Circulate their sexual harassment policy, reinforcing commitment to
eliminating and preventing harassment in the workplace.
· Obtain written acknowledgments from employees regarding their
receipt of policies.
· Provide sexual harassment training for managers.
· Update sexual harassment investigation pro-cedures for compliance
with state and federal law.
· Train human resource’s staff regarding appropriate techniques.
· Conduct an audit of personnel files involving past sexual harassment
and discrimination complaints
· Update hiring policies and procedures
It is necessary for all employers to have a detailed policy statement,
to protect both themselves, and their employees.