When people hear the phrase “sexual harassment”, they typically envision a lecherous boss propositioning his attractive secretary for sexual favors. While sexual harassment can certainly take this form, it also includes a host of other activities, many of which have nothing to do with solicitations for sex. The two varieties of sexual harassment prohibited under Title VII are “quid pro quo” harassment and “hostile work environment”. Quid pro quo cases involve making an employee’s acceptance or tolerance of a superior’s sexual advances a condition of employment. Hostile work environment cases involve an employee suffering substantial mistreatment (not necessarily of a sexual nature) due to his or her gender.
Sexual Harassment — Quid Pro Quo
Quid pro quo sexual harassment occurs when an employer offers preferential treatment (such as a promotion or raise) or threatens negative treatment (such as termination) based upon an employee’s acceptance or rejection of the employer’s inappropriate sexual behavior. While it can include the traditional “sex for favors” variety, it is not limited to just offers for intercourse. If the employer takes certain liberties with his (or her) hands — rubbing an employee inappropriately — and the employee is punished for not tolerating this behavior, this is also a form of quid pro quo sexual harassment.
Note that it is not a violation of Title VII for an employer to ask an employee out on a date, or even to crudely proposition an employee for sex. Sexual harassment occurs only if the sexual advance is unwanted and the employee suffers some negative employment action when it is rebuked. The employee need not be fired. She could be passed over for a promotion, be transferred to a less desirable job assignment or have her hours cut, for example.
Also, it is not sexual harassment for an employer to show favoritism toward an employee with whom he is involved in a sexual relationship. This situation is referred to in employment discrimination cases as a “paramour” relationship, and it is generally accepted that favoring a paramour does not violate Title VII because such favoritism affects male and female co-workers who are not the paramour equally. An exception to this general rule could exist if the employer offered favorable treatment to the first female employee to accept his sexual advances, but this is rarely the case. More often, the employer doesn’t offer to trade sex for favors with non-paramour employees. He just favors the one with whom he is already involved in such a relationship.
So, if your employer promotes his paramour and had never offered to promote you in exchange for sex, he has not sexually harassed you — even though you feel you would have gotten the promotion if he had not been sleeping with the co-worker.
Sexual Harassment — Hostile Work Environment
Sexual harassment claims do not need to be based on offers for sexual favors by your boss. Hostile work environment claims are based on an employee being treated unfavorably due to the employee’s gender. For example, if a woman takes a job in a field traditionally filled with men and suffers substantial abuse by her male co-workers as a result, she has been sexually harassed.
Imagine a female construction worker being constantly “hazed” by her male co-workers. They may hide her tools, lock her in port-o-potty, post pictures of her with her face photoshopped onto unflattering images around the worksite, or any other number of things to generally make her miserable just because she is a woman. Their behavior is not motivated by sexual desire, but rather simple prejudice against women.
Not every bad joke or insult at an employee’s expense will rise to the level of a sexual harassment claim. In order to create a hostile work environment, the conduct must be severe and/or pervasive. Something involving a physical threat to the employee would clearly be severe, and would qualify on its own as sexual harassment, but minor incidents (such as name calling) must be pervasive, such that their accumulation over time make the working environment hostile.
While the conduct in question must be severe and/or pervasive to constitute a hostile work environment, it need not be so bad that the employee feels compelled to resign or suffer a nervous breakdown. For conduct to create a hostile work environment, it must unreasonably interfere with the harassed employee’s ability to do his or her job. So, as a basic guideline, a hostile work environment:
- involves more than occasional name calling or rude behavior,
- need not be so bad that an employee feels compelled to resign, but
- must be bad enough that it unreasonably interferes with an employee’s ability to do his or her job.
Sexual Harassment Caveats
As a warning to those who may be suffering from sexual harassment, remember that federal law prohibiting sexual harassment only applies to employers with 15 or more employees. If your state has a gender discrimination law, it will likely contain a similar requirement. Also, note that you will often have to complain to the employer pursuant to its sexual harassment policy, and not receive a reasonable response, before you can sue. Sexual harassment laws only regulate employer conduct, not that of every individual employee. If the harassment cannot be attributed to the employer (through either its action or inaction), you do not have a claim for workplace discrimination (although in severe cases, you may have a claim under state laws, such as battery).