1. Definition of Sexual Harassment
2. Sexual Harassment Law
3. Examples of Sexual Harassment
4. Same-Sex Sexual Harassment
5. Factors a Court Will Consider in Hostile Work Environment Cases
6. Dispelling Sexual Harassment Myths
7. Developing and Maintaining Sexual Harassment Policies
8. Building a Comprehensive Policy
9. Investigating Sexual Harassment Complaints
10. Harassment of the Self-Employed

Definition of Sexual Harassment

The definition of sexual harassment is any unwelcomed sexual advances, sexual demands, or any other unwanted sexual conduct in a workplace.  Broadly speaking, there are two categories of sexual harassment: “Quid Pro Quo” and “Hostile Work Environment.”

“Quid Pro Quo” sexual harassment occurs when a person in an authority position, such as a boss or manager, requests sex or sex acts from an employee in exchange for giving them better treatment. This type of sexual harassment could describe threatening to fire or punish an employee if they don’t comply with sexual requests, or offering to promote or give a raise to an employee if they do comply.

“Hostile Work Environment” sexual harassment describes any other demeaning, offensive, or unwanted sexual conduct in the workplace. This could include the presence of inappropriate photographs and videos, the use of offensive language or jokes, or sexual conduct that intimidates or offends.

Sexual Harassment Law

The main sexual harassment law in the United States is found in Title VII of the Civil Rights Act of 1964. This federal law prohibits discrimination based on gender in the workplace. Starting in the 1970s, courts began to recognize sexual harassment as a form of sex discrimination. Today, when employees are victims of sexual harassment, they can bring a lawsuit against their employer under the Civil Rights Act of 1964.

Sexual harassment is sexual conduct directed at someone that doesn’t want it. Therefore, welcome or invited conduct is not unlawful. Moreover, sexual conduct between two consenting people in the workplace may offend other workers, and may be against company workplace policies, but is not likely sexual harassment. When determining whether a behavior constitutes sexual harassment, courts will generally look to the guidelines promulgated by the Equal Employment Opportunity Commission (EEOC).

Every case is different.  When a sexual harassment claim is made, all of the circumstances should be considered. The relationship between the parties, the history of the parties and the workplace, and the overall context of the conduct are important.

Was the conduct complained of sexual in nature? If not, it will not be considered sexual harassment. Sometimes jokes or behaviors are not explicitly sexual in nature, but still considered offensive sexual conduct. The context matters. For instance, hugging someone without permission may or may not be sexual harassment depending on the relationship between the parties and the motivation of the person giving the hug. Any form of touching, standing too close, or even just staring could constitute sexual harassment.

Was the conduct welcome or invited? There is no established test that courts use to determine this. If an employee objects to the conduct, it is pretty clearly sexual harassment for it to continue. However, in many cases, an employee doesn’t make any outspoken objections. But an employee fails to complain about sexual advances or jokes may feel coerced or compelled to keep silent about it, which would still constitute sexual harassment.

Most individual states in the United States also have their own laws and regulations prohibiting workplace discrimination and sexual harassment. In some states, lawsuits for sexual harassment are brought in tort under a theory of invasion of privacy. In other states, there is an administrative process for sexual harassment claims. A few states, like Vermont, require employers to adopt policies against sexual harassment.

Examples of Sexual Harassment

Any statements that are sexual in nature could constitute sexual harassment. “Dirty” jokes, statements about a worker’s physical appearance, or discussing sexual activity can all be sexual harassment. Displaying sexually explicit photographs, videos, or written material could also constitute sexual

Pressuring a co-worker or employee to have sex or perform sexual activity could also be sexual harassment. Specific conduct that could be sexual harassment includes kissing, hugging, and groping. Any form of touching could be harassment depending on the context.

Same-Sex Sexual Harassment

Usually, sexual harassment occurs when a heterosexual boss, manager, or employee makes unwelcome sexual advances toward a heterosexual employee of the opposite gender. However, same-sex sexual harassment also occurs. Same-sex sexual harassment is equally prohibited.

Even sexual conduct between two heterosexuals of the same sex can constitute sexual harassment. For example, sexual conduct or raunchy talk couched as horseplay or jokes can still constitute sexual harassment.

Factors a Court Will Consider in Hostile Work Environment Cases

As discussed, courts will consider the full context of behavior when determining whether it rises to the level of sexual harassment. The specific factors a court will consider include:

  • How often the conduct occurred;
  • How outrageous or unreasonable the conduct was;
  • The conduct of the victim;
  • The relationship of the parties involved; and
  • The nature and size of the workplace.

Dispelling Sexual Harassment Myths

There’s a common misconception that only women are sexually harassed at work. Although women are the most frequent victims, men are also victims of sexual harassment. Same-sex sexual harassment between women also occurs.

Some people think that sexual harassment can only occur in a workplace. In fact, conduct outside of the workplace can constitute sexual harassment as well. Finally, although sexual harassment is often perpetrated by those with workplace authority, that is not always the case. Any co-worker can be the perpetrator or victim of sexual harassment, regardless of workplace rank.

Developing and Maintaining Sexual Harassment Policies

All companies should have a thorough and well-written sexual harassment policy that is provided to all workers by the company human resources department. Having a clear policy on record ensures that employees and managers understand what behavior is acceptable, and understand their rights if they feel victimized. If an incident does occur, a company that has a clear policy against sexual harassment is also less likely to suffer legal liability.

Building a Comprehensive Policy

Employers should take their legal responsibility to prevent sexual harassment in the workplace seriously, and having a comprehensive well-written policy against sexual harassment is the best way to do that. A good policy will cover all possible forms of sexual harassment, be gender-specific, and outline procedures for employees to take when they feel victimized.

Sexual harassment sometimes arises when a romantic relationship between employees or between an employee and employer comes to an end. Because of this, many companies prohibit romantic relationships between employees.

Investigating Sexual Harassment Complaints

When a sexual harassment claim is made, a company has a duty to conduct a thorough investigation of it and take appropriate actions to prevent the harassment from occurring again. Each company should have a procedure in place that provides for a neutral and credible person within the company to conduct the investigation.

Every claim should be taken seriously, no matter how minimal or trivial the conduct complained of seems to be. Similarly, no matter how serious an allegation, an investigation should take place before the person accused of harassment is punished or fired.

A thorough investigation would begin by conducting an in-depth interview of the complainant. This interview should obtain information about the incident complained of, the history of the relationship between the parties, and any other information about the complainant that is relevant.

The investigator should next get the accused’s side of the story. Sometimes, sexual harassment claims stem entirely from a misunderstanding. When employees have different cultural or social norms, behavior that may be thought up as an innocuous social custom by the actor could be mistakenly interpreted as an invasive intimate action by the recipient. In other cases, an accused could simply have misread a situation and innocently said or done something that they had no idea was offensive.

The investigator should also interview any witnesses of the complained of behavior. The investigation should uncover all the dates, times, places, and relevant circumstances of the complained of conduct. It is important to make sure that a claim of sexual harassment can be substantiated in some way.

Harassment of the Self-Employed

Individuals who work as independent contractors do not enjoy the same protections under federal law as regular employees. Self-employed workers that perform work as independent contractors can, however, sue for sexual harassment under state tort law.

If you need help with creating contract, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.