Sexual Harassment

Sexual Harassment Employment Law

Sexual Harassment Law:

Sexual Harassment is a form of sex discrimination. Inappropriate sexual advances, verbal requests for sexual favors, and unwelcome physical contact constitutes sexual harassment. When any form of sexual harassment interferes with an individual's work and creates an intimidating work environment, it should be reported to the employer.

Legal Sexual Harassment Issues:

Sexual harassment can occur in any of the following circumstances:

  • The victim or harasser may be a woman or a man
  • The harasser does not necessarily have to be another employee, it may be a supervisor, agent or a non-employee
  • A victim could be someone other than the harassed victim

Victims of sexual harassment at the workplace go through many emotions such as humiliation, frustration, withdrawal and even suffer damages in the aftermath. Victims of severe sexual harassment such as rape can form dysfunctional families and even life threatening diseases. Sometimes victims are forced to leave their jobs to avoid being harassed in the future, which compromises their careers. Surveys show that only a small percentage of women who have been victims of sexual harassment at the workplace actually go through with filing a complaint, for the fear of jeopardizing their careers.

I. What is Sexual Harassment?
II. How Common is Sexual Harassment?
III. Perceptions and Perspectives
IV. What is Unwelcomeness?
V. Intent and Impact
VI. Use of Humor
VII. Sex or Power?
VIII. Types of Harassment
IX. False Accusations and Retaliation
X. Supervisor's Responsibilities
XI. Costs of Harassment
XII. Experiencing Harassment
XIII. Risky Behaviors
XIV. Employer's Liability and the Law

I. What is Sexual Harassment?

Workplace sexual harassment as defined by The Equal Employment Opportunity Commission (EEOC):

"Unwelcome sexual advances, requests for sexual favors, and other verbalor physical conduct of a sexual nature constitute sexual harassment when: (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating hostile or offensive working environment."

Student sexual harassment as defined by The Equal Employment Opportunity Commission (EEOC):

"Sexual harassment is unwelcome conduct of a sexual nature. It can include verbal, nonverbal or physical conduct of a sexual nature. Sexual harassment of a student can deny or limit, on the basis of sex, the student's ability to participate in or benefit from services or opportunities in the school's education program or activity."

Sexual harassment as defined by the Fair Employment and Housing Act (FEHA):

Sexual harassment is defined in terms of sex, including sexual harassment, gender harassment, and harassment centered on pregnancy, childbirth, or similar medical conditions.

Sexual harassment as defined by the Fair Employment and Housing Commission: Sexual harassment consists of unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This includes various forms of offensive behavior and harassment based on a person's gender and also includes:

  • Unwanted sexual advances
  • Offering employment benefits in exchange for sexual favors
  • Making or threatening reprisals after a negative response to sexual advances
  • Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoon or posters
  • Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
  • Verbal sexual advances or propositions
  • Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations
  • Physical conduct: touching, assault, impeding or blocking movements

The California Department of Fair Employment and Housing list of the three most common types of sexual harassment filed:

1. An employee is fired or denied a job or an employment benefit because he/she refused to grant sexual favors or because he/she complained about harassment. Retaliation for complaining about harassment is illegal, even if it cannot be demonstrated that the harassment actually occurred.

2. An employee quits because he/she can no longer tolerate an offensive work environment, referred to as a "constructive discharge" harassment case. If it is proven that a reasonable person, under like conditions, would resign to escape the harassment, the employer may be held responsible for the resignation as if the employee had been discharged.

3. An employee is exposed to an offensive work environment. Exposure to various kinds of behavior or to unwanted sexual advances alone may constitute harassment.

The California Fair Employment and Housing Act protects harassment and discrimination in employment from:

  • Age (40 and over)
  • Ancestry
  • Color
  • Denial of Family and Medical Care Leave
  • Disability (mental and physical including HIV and AIDS)
  • Marital Status
  • Medical Condition (cancer and genetic characteristics)
  • National Origin (including language use restrictions)
  • Race
  • Religious Creed
  • Sex (pregnancy or gender)
  • Sexual Orientation
  • Gender Identity

The California Fair Employment and Housing Act specifically:

  • Prohibits discrimination against any job applicant or employee in hiring, promotions, assignments, termination and terms and conditions or privileges of employment.
  • Prohibits harassment of employees, applicants and independent contractors and requires employers to take all reasonable steps to prevent harassment from occurring.
  • Prohibits employers from limiting or prohibiting the use of any language in any workplace unless justified by business necessity.
  • Requires employers to reasonably accommodate employees' religious beliefs and practices.
  • Requires employers to reasonably accommodate employees with a disability in order to enable them to perform the essential functions of a job
  • Requires employers to provide leaves of up to four months to employees disabled because of pregnancy or childbirth.
  • Requires an employer to provide reasonable accommodations requested by an employee, with the advice of her health care provider, related to her pregnancy, childbirth, or related medical conditions.
  • Prohibits retaliation against any person who has filed a complaint, participated in an investigation or opposed any activity prohibited by the Act.

II. How Common is Sexual Harassment?

Sexual harassment commonly occurs at various workplaces and campuses, in all occupations and profession levels, educational backgrounds, ages, racial and ethnic groups, and income levels. The majority of harassment cases involve male to female harassment, although some cases involve female to male or female to female or male to male harassment.

In 2006, the Equal Employment Opportunity Commission (EEOC) received 12,025 sexual harassment complaints. Males filed 15.4% out of those 12,025 complaints.

III. Perceptions and Perspectives

In our daily lives, we all interact with people who come from widely different backgrounds and experiences than us. Every individual interprets and judges the world based on their expectations, values, background and education. It is expected that two women look at the same painting and explain it differently.

Men and women also have different perceptions. People from different cultures and different ages often have different perspectives on sexual harassment and sometimes they may not be able to know the perceptions or intentions of another person. Most men are raised in sexually explicit or aggressive environments. Many feel that sexual harassment is blown out of proportion. Women, on the other hand, are encouraged by media and peers to use their looks and personality to attract men and please them.

It is important for both men and women to remember that significant differences may exist and that assumptions about another person's behavior may be invalid. It is therefore advised that before acting on assumptions, it is crucial to exercise restraint and consult others.

IV. What is "Unwelcomeness"?

Some cases of sexual harassment are mild such as a harmful joke, while others are more severe such as a physical assault. Whether or not a certain behavior is defined as sexual harassment depends greatly on whether or not that behavior is unwelcome.

Unwelcome behavior is behavior that is not welcome and not wanted by the offended person. You may perceive your behavior to be friendly, but a co-worker or student may actually find the behavior offensive. Before you act, it is important to think about the other person's reaction and if the act could possibly be perceived as sexually offensive.

These tips can help you avoid committing behavior that is unwelcome.

  • Respect the people you work with
  • Think before acting, speaking, or saying a joke
  • Be considerate to cultural differences
  • Practice common courtesy

V. Intent and Impact

It is important to understand the difference between intent and impact. Intent does not carry relevance when determining whether or not a behavior constitutes as sexual harassment. The impact of the behavior is of utmost relevance. In other words, regardless of the intent of a person, sexual harassment will be determined by the impact of the behavior upon the work environment. Saying "I didn't mean it" is not a defense for any behavior.

VI. Use of Humor

Can an unintentional joke contribute to sexual harassment? Yes, it can. This is because it is the actual impact of the behavior, not the intent, which is considered in regards to sexual harassment.

Consider this example: James loves telling funny stories and keeping a good spirit alive in the lab. One afternoon, he sees Jennifer and notices she looks a little depressed. To help cheer her up, he tells her a short funny story with some sexual content. Jennifer gets offended and leaves the lab. James didn't mean harm by the story, instead he intended to cheer Jennifer by making her laugh. This shows that the intent of one person might be perceived differently by another.

Most people enjoy a good joke and a good laugh. But this doesn't mean that "it was only a joke" is a valid excuse for sexual harassment. Since people have different perceptions, it is easy to offend someone with humor. Remember that it is about the impact, not the intent, of the person making the joke.

VII. Sex or Power?

Most people still don't think that sexual harassment is an issue of power or disrespect. Well, the fact of the matter is that workplace and classroom sexual harassment is based on power and not romance. In some cases, failed romances can lead to harassment, but it is typically a matter of power.

Since some people have authority over others at the work place, subordinate employees do not always feel they can speak up or have control over their working conditions. Sometimes, domination through physical size, loud voice, strong personality and superior attitude can be intimidating and discourage them to speak out about unwelcome behavior.

Sexual harassment is illegal and just because someone has more power or authority over the other doesn't give anyone the right for such behavior.

VIII. Types of Harassment

Sexual harassment can occur:

  • Peer to peer
  • Subordinate to supervisor
  • By a woman against a man
  • By a man to a man / by a women to a woman
  • By a third party
  • Quid pro quo

Peer to Peer Harassment

Sexual harassment may involve people who have equal authority, such as supervisor to supervisor, employee to employee, teacher to teacher or student to student. Peer to peer harassment is often easy to stop by giving a clear request to the offender to discontinue the behavior. If the offender continues the behavior, it is advised to notify a supervisor or campus official.

Subordinate Harassment of a Supervisor

In some cases, a subordinate harasses a supervisor. Although this is not common, it may occur when the offender is intimidating. This form of harassment is taken seriously and if the behavior continues after requesting the offender to stop, the target is advised to seek the help of a higher level of management.

Same Sex Harassment

Unwelcome sexual behavior can also come from members of the same sex. The same laws against sexual harassment apply for same sex harassment as it does for persons of the opposite sex, if the behavior is unwelcome and sexual in nature.

Third Party Harassment

Persons could be sexually harassed by third parties at the work place or school. In some cases, the harasser could be:

  • A visiting sports team or coach
  • A guest speaker
  • A volunteer
  • An employee of a business or agency of student internships
  • A person affiliated with a school program

It is possible that the school be held liable for harassment by third parties. If the administration is aware of it, they are expected to take immediate action to stop the harassment.

Quid Pro Quo

Quid pro quo is Latin for an exchange such as "this for that" or "something for something". In the case of sexual harassment, quid pro quo occurs between supervisors and subordinates and between faculty and students, where a sexual favor is asked in exchange for grades, favorable treatment in work assignments, recommendations, pay or promotion. An example of quid pro quo is "I will give you a pay raise when you have sex with me."

Other examples are:

  • Ted offers his assistant, Mary, a ride home after work one day and attempts to kiss and fondle her, even as Mary refuses and tells Ted that she feel offended. After a couple of weeks, Ted decides to reorganize the department and requires Mary to move to a less responsible position.
  • During a job interview, a manager tells Rosy that she can have a permanent job at the work place if she sleeps with him.
  • Carla refuses to date Ron, so Ron refuses to release the transcripts Carla needs to have in order to apply to a study-abroad program.

IX. False Accusations and Retaliation

It is common for both men and women to attempt filing false claims of harassment. They may have psychological problems, a desire to get back at a manager or colleague, a desire to win money from a lawsuit or to protect their job if they are not performing well. However, false claims can cause extensive investigations and serious financial liability for the accuser.

Retaliating against an employee who complained about harassment or participated in an investigation of harassment is illegal and can lead to liability. Once the allegation is in place, everyone needs to be notified and a proper investigation is necessary.

In Burlington Northern & Santa Fe Railway Co. v. White (2006), Supreme Court established a definition of retaliation, which prevents any employer to discourage an employee from making a harassment or discrimination charge. Supervisors should be careful not to treat employees that made any complaint of harassment any differently.

X. Supervisors' Responsibilities

Since supervisors exercise authority on behalf of employers, they have important responsibilities when it comes to handling sexual harassment. Supervisors should make sure that the workplace is free of sexual harassment. They should take complaints very seriously and respond immediately to the concerns of the employee.

When a supervisor receives a report of sexual harassment, they should immediately report it to the appropriate person, be supportive of the complaint, conduct a fair investigation, take corrective action, continue to monitor the situation even when the behavior has subdued and protect the privacy of the person who reported the harassment.

On the other hand, supervisors who exhibit unwelcome behavior towards others may be at great risk. A court may find that supervisor liable, as well as find the employer liable. The Supreme Court has affirmed that the employers are responsible for the behavior of the supervisors they appoint.

If a supervisor is accused of sexual harassment, it is important to discuss the issue with a manager or appropriate department. If a formal complaint is filed, it is necessary for an investigation to take place. Throughout the proceedings, it is important to be honest and patient. A supervisor must avoid contacting the accuser for any reason, such as to apologize or get an explanation of the complaint.

XI. Costs of Sexual Harassment

Sexual harassment is highly complex and disruptive process for all parties. It can be very costly, and the work environment can feel its negative effects, and the involved parties may suffer losses such as:

  • Financial losses
  • Loss of physical health
  • Loss of emotional well being
  • Loss of time and productivity
  • Loss of job and career

Financial losses

In many cases of sexual harassment, businessmen have lost their job. For example, in 1991, Martin Greenstein, the ex-trademark attorney at the San Francisco firm, was accused with sexually harassing a legal secretary who was employed with him for only three weeks. The secretary was awarded punitive damages and Greenstein was terminated in 1993, after a series of other charges.

Loss of physical health

Sexual harassment can be detrimental to one's health. Some physical reactions to sexual harassment can be headaches, gastrointestinal distress, dermatological reactions, weight fluctuations, sleep disturbances, phobias, nightmares and sexual problems.

Loss of emotional well being

The devastation of sexual harassment may have negative effects on a person's well being. Some people suffer depression, shock, denial, anger, irritability, insecurity, confusion, feelings of betrayal, shame, low self-esteem, guilt or self-blame.

Loss of time and productivity

Sexual harassment at the work place can cost a company time and productivity. Many companies lose millions of dollars per year because of sexual harassment and experience absentees, increased staff turnover and reduced productivity. Employee morale decreases and divisions amongst different employees begin to form. Worker's compensation and unemployment claims tend to increase, not to mention corporate reputation and credibility.

Loss of job and career

Sexual harassment can have negative effects on a person's career. A person may experience decreased job satisfaction, loss of promotion, a drop in work performance, absenteeism, withdrawal from tasks or change in career goals.

XII. Experiencing Sexual Harassment

Sexual harassment in a work environment is illegal and not acceptable. An employer needs to ensure that the work environment is comfortable and free of harassment. If you encounter sexual harassment at work, consider the following:

Firmly, clearly and directly notify the harasser to stop the harassment. If you feel comfortable enough to confront your harasser yourself, make sure you make it clear that you find his/her behavior offensive. You can say "thank you for helping me, but please remove your hand from my arm" or "please stop commenting about my body because I find it offensive."

If you cannot confront the offender personally, you may put your request in writing, making sure you keep a copy of what you wrote and the date it was written. If you choose not to confront personally or write a letter, contact your supervisor.

If the harassment is on-going, document the conversations, incidence and occurrences of the behavior. Keep a written record of the locations, dates, times, places, comments, actions and witnesses.

XIII. Risky Behaviors

The types of behaviors that could be considered sexual harassment are verbal, non-verbal, physical, and visual.

Verbal behaviors

The following verbal behaviors may contribute to a hostile work environment if unwelcome:

  • Derogatory comments based on gender, that carry a sexual nature
  • Comments or inappropriate compliments about clothing or a person's body
  • Jokes or teasing based on sex or gender
  • Requests for sexual favors
  • Requests for dates, even after multiple rejections.
  • Terms of endearment ("honey", "dear", "sweetheart")
  • Referring to an adult as "girl" or "boy," "doll" or "hunk"
  • Sexual innuendoes or sexual stories
  • Inappropriate grunts, wolf whistles, catcalls, lip-smacks and animal noises
  • Stories of sexual exploitation
  • Obscene phone calls or emails
  • Lies or rumors about a person's sex life

Non-verbal behaviors

The following non-verbal behaviors may contribute to a hostile work environment if unwelcome:

  • Staring at a person longingly
  • Looking at a person up and down (elevator eyes)
  • Making derogatory gestures
  • Making a sexual facial expressions such as winking, licking lips

Physical behaviors

The following physical behaviors may contribute to a hostile work environment if unwelcome:

  • Leaning over and invading a person's personal space
  • Inappropriately touching a person or their clothing
  • "Accidentally" brushing sexual parts of a person's body
  • Indecent exposure or flashing a person
  • Blocking someone's path with a sexual advance
  • Massaging a person's neck without consent
  • Deliberate sexual touching, brushing up, or pinching
  • Pressing or rubbing up against a person
  • Stalking
  • Grabbing
  • Kissing, hugging, patting, stroking

Visual Behaviors

The following may visual behaviors may contribute to a hostile work environment if unwelcome:

  • Posters, cartoons, calendars, and pictures of a sexual nature
  • Electronic bulletin boards/computer graphics of a sexual nature
  • Inappropriate, sexually expressive or revealing clothing

XIV. Employer's Liability and the Law

Under federal law, an employer is responsible when an employee is victimized by sexual harassment by a supervisor or someone else with authority. When the harassment leads to demotion, decreased compensation, different work assignments or termination, the employer is completely responsible.

Under California law, an employer is always legally responsible if their employees have been sexually harassed by supervisors. However, if the victimized employee fails to take into account the preventative measures of the employer, the employee's conduct will limit the amount of damages they receive. This is known as the avoidable consequences doctrine.

In 2003, California Supreme Court ruled that an employer may limit its monetary damages if the employer establishes that it took steps to prevent and correct the harassment, that the employee failed to take advantage of the employer's policies against harassment, and that the employer's policies would have prevented some of the harm the employee suffered.

The Supreme Court has not addressed peer sexual harassment. Lower federal courts have continued to hold employers liable if the employers should have known of the sexually harassing behavior and failed to take corrective action, such as ending the harassment, taking action against the offending employee and taking measures to prevent future misconduct.

The U.S. Supreme Court reveals the behaviors that place employers at greater risk for having sexual harassment occur at the workplace:

  • Employer failing to enforce a policy against harassment in the workplace
  • Employer failing to establish a complaint procedure
  • Employer failing to act when receiving reports of potential harassment
  • Employer failing to monitor employee behavior
  • Supervisor failing to report harassment immediately
  • Supervisor failing to report facts that could constitute harassment because not enough facts were presented or because the supervisor did not want to get involved

Burlington Northern Santa Fe Corp v. Sheila White

In 2006, the U.S. Supreme Court decided on how to deal with retaliation against an employee who has reported sexual harassment. Sheila White, a female railroad yard employee, reported sex discrimination. She was then assigned to a position that was less desirable. The new position did not cause White a loss of wages but did include dirtier work. White filed a charge claiming unjust reassignment and that she was under surveillance by her employer. She was then suspended and unpaid for 37 days. The Supreme Court held that Burlington's reassignment of duties and the unpaid suspension was illegal, since it would stop a person from claiming discrimination claim in the future.

Gebser v. Lago Vista Independent School District

In 1998, the Supreme Court decided that a school could be held liable for a teacher-student relationship. A teacher's sexual relationship with an eighth-grade student is a school's liability if a responsible official with authority to take corrective action had knowledge of the harassment and acted with indifference.

Davis v. Monroe County Board of Education

In 1999, the Supreme Court held a school liable for monetary damages in case of student-to-student harassment if:

  • The harassment is was severe, pervasive, and offensive, which deprived the victims access to educational opportunities and benefits
  • An official with authority had actual knowledge of the sexual harassment
  • The school board was indifferent to the harassment.

Sexual Harassment Lawyers

It is important to speak up against sexual harassment if you find yourself in such a situation at work. Victims should first and foremost provide a written report or complaint to their supervisor, head of the company, or any other responsible individual in the workplace. Such a complaint should include all details of the incident and any names of witnesses or pieces of evidence left behind. If the employer does not seek immediate action, the victim should contact a sexual harassment lawyer as soon as possible. A sexual harassment lawyer can defend the victim and explore all options for legal protection, including litigation or lawsuits against the harasser and/or the company. Filing a complaint can be an emotional and stressful situation after suffering from sexual harassment, so having an experienced lawyer on your side can help you not only feel safe, but also get the justice you deserve.

What an Employment Lawyer can do for you:

Victims of sexual harassment should first provide a written complaint to their supervisor or any other individual who is responsible. They should include details of the incident and names of witnesses. The employer should take immediate action. If the employer fails to take action the victim should contact a sexual harassment lawyer to explore legal protection and grounds for a possible lawsuit. A lawyer can help you file your complaint and help you get the justice you deserve.

Lawyer Referral Service:

If you feel you are a victim of sexual harassment, you should contact a sexual harassment lawyer promptly. Attorney Search Network can refer you to a sexual harassment lawyer to represent you in your sexual harassment claim.

If you have any questions about the employment law information provided above, please contact us. Call us toll free at (800) 215-1190 or fill out our online form for your Employment Law lawyer referral.

If you have any questions about the information provided above, please contact Attorney Search Network.