Hostile Environment Sexual Harassment

Sexual harassment is a type of discrimination that's characterized by any type of unwanted, repeated sexual advance, comment, or gesture that's deliberate in nature. Building upon that definition, hostile environment sexual harassment is one type of harassment that creates an abusive work environment that impedes workers from doing their job. It's a serious problem in many workplaces and affects workers even after they go home.

What Are the Types of Sexual Harassment?

In general, there are two classifications of sexual harassment:

  • Quid Pro Pro Sexual Harassment
  • Hostile Environment Sexual Harassment

While both of these types of sexual harassment center around unwelcome and unwanted sexual conduct, they have a few distinct differences that are important to recognize.

Quid Pro Quo Sexual Harassment

Loosely translated from Latin to English, quid pro quo means "this for that," which is exactly what happens in quid pro quo sexual harassment cases. This "if you scratch my back, I'll scratch yours" mentality usually only comes when a supervisor is one part of the equation. In this scenario, the supervisor may ask for sexual favors in exchange for an employment benefit. For example, if a supervisor offers a wage increase based on receiving a kiss in return, this would constitute quid pro quo sexual harassment.

The reason that a supervisor is almost always involved in quid pro quo cases is because their power enables them to dole out benefits without needing approval. Some of these benefits include:

  • Wage increases (raises)
  • Promotions
  • Favorable performance reviews
  • Career enhancement recommendations
  • Better or easier work assignments
  • Change to a more favorable or satisfactory work schedule

Quid pro quo sexual harassment is not limited solely to sexual propositions. It may also come off as an aggressive and graphic discussion of sex acts or commentary about an employee's body, appearance, or clothing and what the aggressor would like to do with it.

It's important to note that quid pro quo sexual harassment also occurs when there's a threat of negative work consequences for refusing sexual advances. Also known as quid pro quo sexual harassment, this basically works in reverse of quid pro quo sexual harassment. If the victim refuses the sexual advances of their superior, the victim may suffer backlash, such as:

  • Poor performance reviews
  • Demotion
  • Threats of Job Loss
  • Termination
  • Less desirable shifts
  • Unfavorable assignments

Because of the severity of the harassment, just one incidence of quid pro sexual harassment is illegal and usually enough to warrant a lawsuit. Furthermore, the employer, not just the supervisor, is often liable for quid pro sexual harassment lawsuits. This is because supervisors act as agents and a reflection of the employer.

An Example of Quid Pro Quo Sexual Harassment

In a case involving AT&T, a former employee complained that she was a victim of quid pro quo sexual harassment from a member of senior management. In this instance, the manager told the employee that he was unhappy with his sex life with his wife and that he had affairs with women on the side. Because AT&T was set to do a massive restructuring, he told the employee that she could have the job she wanted if she "played her cards right." Following this comment, hey fingered her earring and told her that he could have a co-worker's job and make them disappear.

When the employee rejected these advances, the manager took swift retaliatory action by stripping her of responsibilities and leaving her with nothing to do at work. She voiced her concerns to supervisors on many occasions, but nothing was done. Shortly thereafter, she went on disability leave. When she returned, she received a demotion, which led to her resignation. After this, she filed a claim of quid pro quo sexual harassment and won a suit against her former employer based on the evidence provided and indifference from AT&T.

Hostile Work Environment Sexual Harassment

The other main type of sexual harassment is hostile work environment sexual harassment. It takes place when there are several instances of a co-worker, supervisor, or third-party making inappropriate, repeated, and unwanted sexual advances, comments, or requests. Example of this type of behavior include:

  • Repeated and unwelcome sexual advances
  • Sexual and distasteful jokes
  • Impeding another employee from freely moving from one place to another

However, unlike quid pro quo sexual harassment, hostile work environment sexual harassment is rarely an isolated occurrence. Instead, it's repetitious. This is because a single sexual advance that was not reciprocated or was turned down doesn't necessarily constitute harassment. Only after a victim makes repeated statements to cease the behavior does it become harassment and contribute to a hostile work environment. In rare cases, a severely offense occurrence of sexual misconduct can be deemed sexual harassment, but this happens infrequently. Because there are more criteria for this type of harassment, it's often examined on a case-by-case basis.

In some instances of hostile work environment sexual harassment, a single event isn't easy to prove in court. If it is harassment, it has to be severe enough that a sole instance caused distress for the worker. Typically, this would only involve threats or extreme sexual misconduct such as groping or touching.

Another main difference from quid pro quo sexual harassment is that hostile work environment sexual harassment doesn't have to put any employee benefit at risk such as wages or promotions. It also doesn't require a supervisor to make the unwanted sexual conduct. As such, the possibility of occurrence exists on all levels of employment.

In some instances, hostile work environment sexual harassment victims aren't directly involved in the incident. If other people's comments or interactions cause another employee to feel uncomfortable at the workplace, this also contributes to a hostile work environment. These employees can make a hostile work environment claim, but only if someone with the same personal characteristics, such as race, age, or gender, would also consider it sexual harassment.

The other less common type of harassment deals with favoritism. However, there's an important distinction to make. Because this type of potential sexual harassment deals with a supervisor, it may seem like quid pro quo sexual harassment. However, a supervisor making sexual comments or actions toward an employee that they're currently having a sexual affair with does not qualify as harassment, even to third parties. It's only when a pattern of sexual favoritism causes employees to feel like it's the only way for career advancement does it become hostile work environment sexual harassment.

Who Is Liable in Hostile Work Environment Sexual Harassment Cases?

The biggest question mark with hostile work environments is figuring who is liable for damages. For an employer to become liable in this type of sexual harassment between two same-level employees, evidence should show that the employer knew or reasonably could have known about the harassment yet did nothing to stop it. However, if the harasser is a supervisor, this trumps the idea. Much like a quid pro quo situation, the supervisor acts as an agent for the company, and as a result, the company is usually liable by default.

However, the employer isn't always to blame for the situation and cannot be held liable. When an employer takes the necessary precautions or steps after the fact to prevent repeated instances of sexual harassment, this is a viable defense for the employer.

Because liability in a sexual harassment case is often costly, many industry experts agree that a proactive approach to this kind of sexual harassment is beneficial and to some degree a necessity. By enforcing a sexual harassment policy or outlining one in an employee handbook, providing training to employees, and maintaining adherence and awareness of the policy, employers can hope to eliminate, prevent, or (at the very least) lessen the chance for hostile work environment sexual harassment.

Hostile Work Environment Sexual Harassment in a Court of Law

If an employer fails to curb or stop sexual harassment in the workplace, the next step for victims is to take the case to court. The court looks at all aspects to determine if the particular case is severe enough to cause an unlawfully hostile work situation. Some of the circumstances considered by courts would include:

  • If the harassing behavior was offensive enough create an abusive work environment
  • The frequency of the conduct
  • If the behavior interferes with work performance
  • If the alleged harassment is intimidating, threatening, or humiliating or just an overreaction or sole instance

To determine the offensiveness or level of severity of the sexual harassment, courts often judge the conduct through the perspective of a reasonable person with the same characteristics of the victim (the plaintiff). This necessitates a thorough examination of social behavior in the workplace as well as the context of the said incidents. This is an integral distinction, as most courts only award damages for hostile work environment sexual harassment if the plaintiff can prove that the employer did not make a reasonable effort to stop the harassment or showed reckless indifference.

If the court rules in favor of the victim, they may be entitled to a number of damages. This can include punitive and compensatory damages. Punitive damages are part of a punishment levied against the employer. Compensatory damages cover other aspects such as back pay, pain and suffering, medical expenses, or future economic loss, also known as front pay.

An Example of Hostile Work Environment Sexual Harassment

While this case doesn't refer directly to sexual harassment, it's important for outlining how integral it is for victims of hostile work environment sexual harassment to determine multiple instances of harassment.

In the court case of Dee v. Vintage Petroleum, Inc., a court found that a hostile work environment had occurred because of the frequency of events. Not only did a supervisor fire off racial slurs at an employee, but he also made a string of comments that were offensive. Because of one documented comment, the court found that no such comment could be made in a sole instance and that the comments were repetitive. This enabled the worker to prove that this contributed to a hostile work environment. Later it was found that the supervisor created this work environment so that the employee wouldn't blow the whistle on his behavior.

Keys to a Successful Claim in a Hostile Environment Sexual Harassment Case

Employees that find that their complaints fall on deaf ears in upper management should immediately follow up their complaint by filing a claim with the Equal Employment Opportunity Commission, or EEOC. However, it's important to get down some key ideas and be able to prove and present them in order to have a successful claim. Each of these conditions must be satisfied:

  • That the claimant was the subject of unwanted or unwelcome sexual harassment by a supervisor, co-worker, or third-party such as a client or vendor
  • That the harassment was solely based on the victim's sex. This can be either opposite sex or same sex harassment
  • That the harassment continued repeated and enough times that it contributed to a hostile work environment
  • That the relationship between the victim and the alleged harasser is strong enough to place liability solely on the shoulders of the employer
  • He or she was subject to unwelcome sexual harassment

Remember that it's up to the victim to prove these points, and if there are any doubts, it may not become a successful claim. In any case, documentation is one of the best ideas when it comes to filing a claim. With an updated and detailed paper trail of each instance, complaints filed with management, follow-ups with supervisors, and any other helpful information, it creates an airtight case. Not only will this stop the harassment, but it will create a modernized policy regarding harassment.

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