Sexual harassment is any unwelcome behavior, requests for sexual favors or other verbal or physical conduct of a sexual nature that can be interpreted as a requirement for obtaining or maintaining employment. There are two types of sexual harassment:

• “quid pro quo,” which involves the exchange of sexual favors for job advancement or continuation, and

   

• “hostile work environment,” which results when a workplace atmosphere of unwelcome sexual harassment is created.

   

Our firm handles all aspects of sexual harassment law, such as harassment investigations, EEOC charges based on sexual harassment, and sexual harassment litigation. If you feel you may need legal advice or representation for a sexual harassment matter, please contact our office.

Quid Pro Quo
Many people may believe that sexual harassment is the one and only type of harassment that can happen. In reality, sexual harassment is perhaps one of the most common forms of harassing behavior, but it is by far not the only one. In fact, many states and local governments have very specific anti-discrimination laws that also contain provisions that prohibit harassment for what are sometimes very unique classes of individuals. The following is a primer on some other types of harassment that may occur in the workplace or elsewhere.

Warning: The examples given below are not meant to be a comprehensive review of all laws relating to harassment. If you are an employer, make sure that you review and understand what types of behavior can constitute harassment in your area. If you are an employee, make sure that you review and understand what protected characteristics you may possess.

General Definition
Harassment prohibits speech or action which is severe or pervasive enough to create a "hostile or abusive work environment."

Types of Harassment

Race, Religion, Sex, and National Origin
Title VII of the Civil Rights Act of 1964 prohibits harassment on the basis of race, religion, sex, and national origin.

Age
A federal court in Indiana has held that harassment on the basis of age is unlawful under the Age Discrimination in Employment Act (ADEA).

Disability
This same federal court in Indiana held that harassment on the basis of disability was prohibited under the Americans with Disabilities Act (ADA). In a different case, a court in Florida held that "fat jokes" directed at an obese employee violated the ADA , as well. A New Jersey court has found that a person could bring a claim for disability harassment based upon two remarks made about his diabetic condition.

Hostile Work Environment

Applying the Definition: Hostile Work Environment

While it is easy to define sexual harassment, it is very difficult to apply that definition to a set of particular facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts particularly in hostile work environment cases where it is more difficult than in quid pro quo situations to prove that harassment occurred.

The U.S. Supreme Court has held that employers may defend themselves in hostile work environment cases brought against them for actions of a supervisor or managerial-level employee by arguing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior. Employers may also argue that they are not liable if an employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment.

Factors for Review

Factors to consider in hostile work environment cases include:

• Frequency of the alleged inappropriate behavior.

   

• Severity of the behavior.

   

• Conduct of the victim.

   

• Context of the alleged harassment.

   

• Size of the employer's business.

   

• Nature of the employer's business.

   

Whether a reasonable person in the position of the plaintiff would have thought the environment to be hostile.

Note: If the alleged victim willingly participated in sexual banter or risqué jokes, it will be more difficult for them to prove that they have actually been harassed.

Dispelling Sexual Harassment Myths

• Only women can be harassed. This is not true. Courts have previously ruled that a woman can harass a man, although such a situation is slightly more rare than a male harassing a woman.

   

• A woman can't harass another woman and a man can't harass another man. This is not true. The U.S. Supreme Court has recognized that illegal sexual harassment can occur between people of the same sex.

   

• Sexual harassment can only occur in a workplace. This is not true.

   

• Only supervisors or those in authority positions can be a harasser. This is not true. A harasser can be a coworker and, in some cases, a third party such as an agent or client of the employer. The key is whether the employer knew or should have known of the harassing behavior and failed to take action

   

Do You Have a Case?
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