An employee should be able to feel safe in their work environment. Unfortunately, there are many employees who experience some form of harassment during their employment or in an interview for a job.
This harassment may come in many forms. It may also have a serious impact on the job performance of the employee as well as their quality of life. However, employees do have some options and remedies for fighting sexual harassment at work.
What is Sexual Harassment?
Sexual harassment is defined by the The Equal Employment Opportunity Commission (EEOC) as simply as harassment of an individual, whether an employee or applicant, based on the individual’s sex.
Sexual harassment may come in many forms, including:
- Making inappropriate comments about another individual’s bodies or appearance;
- Using slurs which are based on an individual’s gender or sexual orientation;
- Making vulgar, explicit, or offensive jokes or statements which are sexual in nature, such as about sex or sex acts;
- Gossiping about an employee’s sex life or relationship status; and
- Making rude, offensive, or sexual gestures.
It is important to be aware that sexual harassment does not always involve physical actions or verbal statements. Harassment may also include:
- Unwelcome sexual advances;
- Requesting sexual favors; and
- Other verbal or physical behaviors of a sexual nature.
In addition, if an individual makes offensive remarks regarding an individual’s sex, such as, a woman should stay home with her children or women are not as smart as men, it may be considered sexual harassment.
In general, one isolated comment will not usually be considered sexual harassment. However, frequent or systematic occurrences may be considered sexual harassment, especially if the behavior creates a hostile work environment.
It is also important to note that any individual of any sex may be a victim of sexual harassment. Sexual harassment may also occur among or between individuals of the same sex.
Most individuals are familiar with the concept of supervisors being perpetrators of sexual harassment against employees. However, perpetrators do not necessarily have to be supervisors.
In fact, a perpetrator may be an employee who is sexually harassing their supervisor. A perpetrator may also be:
- A supervisor in another department;
- A co-worker or colleague;
- A non-employee;
- A client of the company;
- A customer; or
- A vendor.
It is also not necessary for a victim to show that actions were taken by their employer, including an employment retaliation, such as an action or economic injury, including:
- Demotion,; or
- A change in terms of employment.
It is often enough to have a claim for sexual harassment and hostile work environment if the victim can show that inappropriate comments, jokes, or language was used or that inappropriate physical conduct occurred.
What is Quid Pro Quo?
One common form of sexual harassment occurs when a supervisor offers an employee advancement opportunities in their workplace in exchange for sexual favors. The Latin phrase, quid pro quo translates to “this for that.”
In these cases, typically an employee will provide sexual favors and the supervisor will provide some type of career opportunity, such as:
- A raise;
- A promotion;
- A training opportunity; or
- An agreement not two take a negative employment action, such as terminating the employee.
It is important to note that even if unwanted sexual advances are implied, it is still against the law to engage in this type of bargaining in a workplace.
What is a Hostile Work Environment?
As previously noted, an occasional comment or a single joke is typically not considered sexual harassment, even if that joke was sexual in nature or concerned a sexual act. If, however, the comments, jokes, and other language or actions occur to such a degree that they create a hostile work environment, it would be considered sexual harassment.
The United States Supreme Court has held that, in order to determine whether a hostile work environment exists, the entirety of the circumstances must be considered. The circumstances include:
- The frequency of the discriminatory conduct, or how often it occurred;
- The severity of the discriminatory conduct, or how bad it was;
- Whether the conduct was physically humiliating or threatening; and
- Whether the conduct unreasonably interfered with the employee’s ability to do their job.
The Court also noted that it could consider the psychological impact the harassment had on the plaintiff. However, the Court noted that this must be considered in addition to the other factors listed above.
Because of this, it would be unlikely for a court to consider a single comment to be a hostile work environment. However, a comment which was coupled with multiple physical acts or threats may be considered a hostile work environment.
Whether or not sexual harassment creates a hostile work environment depends largely upon the circumstances of each individual case. In addition, it is important to note that each state has its own statutes, standards, and regulations which address sexual harassment within those states.
A hostile work environment is created when an individual or individuals in the workplace engage in harassment which makes it impossible for others to perform their job duties. This harassment typically includes unwelcome conduct or comments which are based upon:
- Sex, including pregnancy;
- National origin;
- Age, if an employee is 40 years of age or older;
- Genetic information; or
- Any other legally protected characteristic.
A hostile work environment may be created by numerous individuals, including:
- Supervisors or managers;
- Repeat clients;
- Contractors; or
- Other employment staff with significant contact with the employee.
If an individual finds themself in a situation where they were subjected to offensive and unwelcome conduct which has affected the terms and conditions of their employment, they may be able to sue their employer for harassment and a hostile work environment.
What Qualifies as a Hostile Work Environment?
What qualifies as a hostile work environment will depend on the circumstances of each employment environment. A hostile work environment may be created by sexual harassment or creating an environment of fear and intimidation.
In order to better understand this concept, it may be helpful to consider a fairly extreme example. Support an individual works in a tattoo parlor and they find the environment hostile due to individuals not having on certain articles of clothing when they were receiving a tattoo.
Given the typical nature of a workplace such as this one, it is unlikely that this employee would be able to successfully argue that a hostile work environment exists. This is mostly because the nature of receiving a tattoo requires individuals to remove certain articles of clothing.
If this particular employee does not like tattoos or they find tattoos offensive, they should have considered that fact prior to accepting employment. It would be unreasonable to expect the workplace to change for the employee’s needs.
However, if the workplace setting is a professional office, and an employee were to walk around without articles of clothing which revealed offensive tattoos, it is much more likely that an employee would be able to successfully argue that this created a hostile work environment. This is especially true in cases where individuals were doing so to intimidate or make another employee uncomfortable.
What Should I Do if I am a Victim of Sexual Harassment?
If you believe you have been the victim of sexual harassment in your workplace, it is important to contact an experienced harassment lawyer, also called an employment lawyer, as soon as possible. Your lawyer can review your case, determine if you have a claim for workplace sexual harassment, and assist you with your complaint or lawsuit as well as represent you in court.