Sexual harassment, like harassment on the basis of race, national origin, age, or disability, is barred by federal law and the laws of most states.
Hostile work environment sexual harassment occurs where an employee, because of his or her sex, is subjected to a pervasive atmosphere of unwelcome conduct that unreasonably interferes with the employee’s work performance or otherwise creates an intimidating, hostile, or offensive work environment. Contrary to popular conceptions, sexual harassment need not be sexual in nature in order to violate the law. While sexual joking, unwanted advances, and offensive pictures, if pervasive enough, may violate the law, unwarranted criticism of an employee’s work or generally unpleasant behavior, even if not obviously sexual, can also be sexual harassment if it is directed at an employee solely because of his or her sex.
Quid pro quo sexual harassment occurs where an employee is required to submit to unwelcome sexual conduct as a condition of his or her job, or in order to gain some job benefit. For example, a supervisor who demands that a subordinate have an affair with him or her in order to be considered for promotion commits quid pro quo sexual harassment.
Sexual harassment may be committed by both men and women, and the victims of sexual harassment may be male and female. The United States Supreme Court case held that sexual harassment may occur between individuals of the same sex: a man may sexually harass a man and a woman may sexually harass a woman. However, although some state laws prohibit harassment that is based on sexual orientation or gender identity, federal law does not make this type of harassment illegal. Some courts are recognizing harassment based on sexual stereotyping, such as where a man is being harassed by other men for acting too feminine.
In order to be illegal, the sexually harassing behavior must be based on sex and must be unwelcome and offensive to its target. An employee who participates in sexual joking or has a consensual sexual relationship with his or her supervisor may have a difficult time proving sexual harassment.
On the other hand, an employee need not necessarily complain about harassment in order to recover. An employer may be liable for harassment of an employee by a coworker, client, or customer if the employer knew or should have known of the harassment, and failed to take appropriate action to stop it. While an employee may not be able to show that his or her employer knew or should have known of harassment if the employee did not complain, if the harasser has harassed others in the past, and those persons have complained, the employee may be able to show that the employer was on notice that harassment was a problem. If the employer, once aware of the harassment, takes action and the harassment stops, then the employee may not have a claim to pursue.
If a supervisor engages in the harassment, the employee need not show that the employer knew or should have known of the harassment. Instead, once the employee shows that harassing behavior has taken place, the employer has the burden of showing that it had taken appropriate actions to prevent and correct sexual harassment (such as by distributing a clear sexual harassment policy to all employees, training supervisors in ways to avoid and handle instances of sexual harassment and by giving employees an appropriate and accessible person with whom to lodge complaints), and that the employee acted unreasonably in failing to take advantage of those steps. However, where the harassed employee has suffered an adverse employment action, such as discipline or demotion, the fact that an employer has a sexual harassment policy in place may not protect the employer against a claim of harassment.
Finally, it is illegal for an employer or a harasser to retaliate against an employee for bringing a complaint or legal claim of sexual harassment. Other employees who testify as witnesses in investigations of sexual harassment or at trial are also protected from retaliation.
Find out whether your employer has a policy covering harassment, including sexual harassment and read it carefully. If your employer has a policy, it is very important that you try to follow its procedures if you feel you are being sexually harassed.