What Constitutes Sexual Harassment?

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 What Constitutes Sexual Harassment?

Sexual harassment is defined as “unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions.” It is a form of sex discrimination that is forbidden by Title VII of the Civil Rights Act of 1964. Title VII applies to private employers with more than 15 employees, as well as state and local governments, labor unions and the federal government.

The victim does not have to be a person of the gender opposite to that of the harasser. Harassment occurs in the workplace, and it becomes illegal when a victim experiences behavior suggesting that either submitting to or rejecting the behavior, explicitly or implicitly, does one of the following:

  • Affects the person’s employment;
  • Interferes unreasonably with the person’s work performance; or
  • Creates an intimidating, hostile or offensive work environment. 

So, for example, if a supervisor indicates that an employee’s continued employment is dependent on the employee’s agreement to provide sexual favors to the supervisor, this is sexual harassment. The victim could reasonably understand that rejecting the demand of the supervisor would lead to dismissal from the job.  Of course, this would affect the person’s employment.

Certain types of behavior are considered minor and can be brushed off, if they occur on a  one-time or other very limited basis. However, if the behavior is repeated, it becomes illegal harassment. Harassment is illegal when it is frequent, severe or intimidating, so as to create a “hostile or offensive” work environment: Some of the behaviors that can qualify as harassment are as follows:

  • Comments about a person’s body;
  • Jokes of a sexual nature;
  • Requests for dates;
  • Requests for sexual favors;
  • Spreading rumors about a person’s sex life;
  • Touching another person’s clothing or body;
  • Pictures, screensavers, or emails of a sexual nature.

For example, a person’s coworker invites them to look at something work-related on their laptop; when the person arrives to look at the coworker’s laptop, a pornographic video is playing on the screen, this would be considered impermissible harassment of a visual nature.

A common type of harassment is the hostile workplace situation. The victim may work in an auto service company where the employees tend to use coarse, obscene language and repeatedly make joking sexual innuendos as well as sexual advances towards the victim. Also, in a common area kitchen, some employees have placed posters of nude women on the walls. When the victim complains to the manager, he brushes it off, telling the victim that they are just joking around and to not be overly sensitive. This is a hostile work environment, and it is considered a form of sexual harassment.

Other types of behavior are clearly severe and unacceptable and thus should be addressed immediately even if they have occurred only once. 

  • Exposure of inappropriate body parts;
  • Threats of physical violence;
  • Battery, or attempted battery;
  • Rape, or attempted rape. 

Harassment does not have to be of a sexual nature; it can include “offensive remarks” about a person’s gender; so a person who constantly berates women in general can by guilty of sexual harassment.

The harasser does not have to be the victim’s supervisor, although it can be. It can be a co-worker, or even a client or customer of the employer. The harasser can be anyone associated with the victim’s place of employment. Also, the victim might not be the target of the harasser but rather can be someone who works in the same environment and is victimized by witnessing the harassment.  

Should All Sexually-Oriented Conversations Be Banned in the Workplace?

To expect people who work together never to flirt, tell off-color jokes on occasion, and even date is unrealistic. It is not realistic to expect people to talk only about business-related matters even in a workplace setting.

A good general rule for employees is to be sensitive to the reactions of others. Additionally, try to keep the following topics to a minimum, if not avoid them altogether:

  • Sexual behavior and comments of a sexual nature;
  • Obscene language or lewd comments;
  • Topics that may be offensive to others.

Avoiding Sexual Harassment When Complimenting Co-Workers

Co-workers are often fearful of complimenting one another for fear of sexual harassment claims. Compliments by themselves are not illegal, but if they focus on a person’s appearance rather than on the quality of work and this type of compliment is frequently repeated, it could be viewed as a sexual harassment problem.

A person who is not sure about what may be appropriate behavior at their workplace can always refer to their company’s sexual harassment policy. The policy may list the appropriate and inappropriate behaviors, as well as the disciplinary actions for sexual harassment claims. The policy should also inform employees how to handle a sexual harassment problem including to whom it should be reported and what to expect after a problem is reported.

If a person is a victim of sexual harassment in their place of work, it is a good idea to directly inform a harasser that the conduct is unwelcome and that the person wants it to stop. They should document the request in writing and make a note of the time and place the request was made, as well as how it was communicated. A victim should also make a record of the harassment when it occurs, noting the date, time, place and behavior that constitute the harassment. 

A victim should make note of any other actions taken in connection with the harassment.  They should write down the names of witnesses and whether the incidents were reported, to whom, when and how. A victim should also learn about any employer complaint procedure or grievance system that is available and make use of it.

An employer should take complaints of sexual harassment seriously and have procedures in place for dealing with them. Failure to respond to a complaint effectively and promptly can open the employer to liability for discrimination in the form of sexual harassment.

If a person does not get a satisfactory response from an employer through its procedure or grievance system, a person can file charges with the Equal Employment Opportunities Commission (EEOC). A charge must be filed within 180 days of the alleged discriminatory act. However, in states or localities where there is an antidiscrimination law and an agency authorized to provide relief for complaints of sexual harassment, a charge must be presented to that state or local agency first. 

In these states or localities, a person may file charges with EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has finished its handling of the charge, whichever is earlier. It is best to contact the EEOC promptly when a person believes they are the victim of sexual harassment. When charges or complaints are filed beyond these time limits, a victim might not be able to obtain any remedy.

Do I Need a Sexual Harassment Attorney?

Both investigating and proving a sexual harassment claim can be challenging. An experienced  sexual harassment lawyer will know if the state or locality in which you live has an anti-sexual harassment law and an agency that enforces it. An experienced harassment lawyer can help you file a complaint within the deadlines for sexual harassment claims that are appropriate to your state. 

Additionally, the EEOC investigators often have caseloads that are unmanageable and cannot investigate your claim immediately. A lawyer will help you investigate your claim and inform you of your various legal options.   

If you believe that you have been the victim of sexual harassment, you should by all means consult with an experienced harassment lawyer to get a professional opinion and guidance as to how to proceed.

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