1. What Is Sexual Harassment in the Workplace?
2. What Are the Types of Sexual Harassment?
3. Sexual Violence in the Workplace
4. What Is an Employer's Liability Regarding Sexual Harassment?
5. Successful Strategies to Prevent Sexual Harassment at Work

What Is Sexual Harassment in the Workplace?

Sexual harassment in the workplace refers to a wide range of sexually oriented comments, advances, or actions that create a hostile or intimidating work environment. This is not limited to a single gender. Men and women can be victims of sexual harassment at work, and any supervisor, co-worker, or person who is not employed by a company but contributes to harassment can be guilty of the crime. State and federal law prohibits this type of behavior and protects the victims of these unwelcome acts.

Under Title VII of the Civil Rights Act of 1964, sexual harassment is a type of sex discrimination much in the line of age, gender, and racial discrimination. The U.S. Equal Opportunity Employment Commission, or EEOC, helps define this more accurately to ensure that victims know what is considered sexual harassment. Some examples of sexual harassment include:

  • Unwanted sexual advances
  • Inappropriate sexual jokes
  • Posting offensive sexual material anywhere in the workplace
  • Inappropriate touching

This is by no means an exhaustive list of potential sexual harassment offenses deemed illegal. Any activity that's unwelcomed and creates a hostile or offensive workplace falls under the umbrella term of sexual harassment. Because of the environment it creates, many states have laws that are stricter than the baseline level laid out by Title VII.

Another common misconception surrounding sexual harassment is who is considered the victim or harasser. The direct victim isn't always the complainant. Sometimes, it is another person who views the conduct and is negatively impacted by it. From the other perspective, the harasser is not always a supervisor. Coworkers, supervisors, and third-parties who interact with employees of a different company are all liable for any type of sexual harassment at work. Types of third-party harassers can include clients, vendors, or contractors.

It is also important to note that both men and women fall victim to sexual harassment. However, this does not always mean it is directed from one gender to the other. A woman can sexually harass another woman, while a man can sexually harass a man. The key to illegality is whether anything said or done is unwelcome or creating an offensive workplace.

Sexual harassment is the most often reported type of harassment at work, but it is not the only type. Regardless of the type of harassment, communication is important. In some cases, the offender may not know they are creating a hostile work environment. Any worker who feels like they are the victim of harassment should communicate their discomfort in writing, verbally, or through actions in an attempt to stop it before it becomes offensive.

What Are the Types of Sexual Harassment?

There are two types of sexual harassment laid out under Title VII of the Civil Rights Act of 1964:

  • Quid Pro Quo Sexual HarassmentThis type of sexual harassment is when a supervisor asks or hints to a subordinate that they should accept sexual harassment for the purpose of gaining something or keeping their current position. In many instances, this includes a promised raise, promotion, or retention of a current job if the subordinate gives into the sexual demands. An example would be if a supervisor asks for a kiss in return for any type of employment decision. This can include sexual advances, sexual favor requests, or any other physical or verbal implication of a sexual nature.
  • Hostile Work EnvironmentThis kind of sexual harassment occurs when a perpetrator uses unwelcome actions, verbal communication, or written communication of a sexual nature that creates an abusive, hostile, or intimidating work environment.

Even with these definitions, some workers find it difficult to identify sexual harassment. The best way to determine if sexual harassment has occurred is if a refusal of a sexual action or voicing of discontent results in the following:

  • Employment termination
  • Denial of promotion
  • Demotion
  • Reassignment to less desirable shifts
  • Poor performance evaluations
  • Any negative employment action that affects the workplace negatively

One element that is important in differentiating between quid pro quo and hostile environment sexual harassment is the level of occurrence. In most instances, a single incident of harassment constitutes quid pro quo sexual harassment. Hostile environment sexual harassment typically has to have several instances of harassment to qualify under the law. However, the more severe the incidents, the less a victim needs to show that the behavior is repetitive. Physical harassment usually has to have less of a pattern than verbal or written harassment.

There are many aspects used in sexual harassment cases to determine the validity of the claim. Courts analyze several components such as:

  • The type of conduct (physical, verbal, or both)
  • The offender, either a co-worker or supervisor
  • How many people joined in the harassment
  • Whether the victim was singled out or if the harassment was directed at a group
  • Frequency of harassment
  • If the conduct was clearly offensive or hostile

In addition to these elements, the victim must also prove that they believed subjectively that the conduct was offensive and intimidating and that a reasonable person would determine that the violator's position was also abusive or hostile.

Unlawful sexual harassment is a broad term because it is anything that disrupts an employee’s job or stymies their success on the job. This is not limited solely to sexual advances, and the key word here is "unwelcome." Some examples of unwelcomed sexual harassment include:

  • Sending suggestive emails or handwritten messages
  • Telling lascivious and lewd jokes or sharing stories of the same nature
  • Directly or indirectly watching or showing sexually inappropriate videos or images such as pornography
  • Displaying sexual images at work, regardless of whether intended for private use
  • Making off-color comments about gender, gender identity, or sexual orientation
  • Asking unsolicited questions about sexual orientation, sexual history, or current sexual relationships
  • Inappropriate physical conduct, including rubbing, groping, touching, pinching, patting, or brushing up against someone on purpose
  • Staring offensively or suggestively
  • Commenting on another's body, clothing, or appearance

Any worker who feels like they are a victim of sexual harassment at work can file a claim with the EEOC. However, just claiming sexual harassment does not guarantee that a harasser faces any legal action or disciplinary action. Successfully filing a claim with the EEOC requires the alleged victim to prove that the violator willingly refused to stop the harassment and that the employer tried to correct the behavior to no avail.

Sexual Violence in the Workplace

While sexual harassment is a significant problem in the workplace, sexual violence is becoming an issue that employers need to address. This is primarily due to the intimidation based on relationships of power between supervisors and subordinates or between co-workers. While this is rarer than sexual harassment, the U.S. Department of Justice still estimates that 8 percent of all reported rapes occur in the workplace.

There are three separate categories that constitute sexual violence:

  • Any type of abusive contact of a sexual nature
  • Use of force to intimidate a person to commit a sexual act against their will, regardless of whether the act is completed
  • A sex act, completed or attempted against a person who cannot understand the act, cannot decline to participate, or cannot communicate to decline due to intimidation, illness, disability, and/or drugs or alcohol

What Is an Employer's Liability Regarding Sexual Harassment?

While only companies with 15 or more employees are subject to Title VII, many states have passed laws that protect workers from sexual harassment for smaller companies. Still, both federal and state laws require these companies to take reasonable steps to correct and prevent sexual harassment. Because of these laws, employers are often liable for sexual harassment. However, employer liability hinges on numerous factors, such as:

  • If any type of sexual harassment is proven, employers may have to offer monetary and/or punitive damages
  • Who committed the alleged harassment
  • If the employer took necessary actions to curb the harassment or discipline the harasser through demotion, firing, changes in responsibilities
  • If the employer failed to provide a policy or adequate training about sexual harassment
  • Failure to investigate claims of sexual harassment

If enough evidence exists that points toward sexual harassment, the victim may receive restitution or remedies. Examples of typical damages are:

  • Back pay
  • Front pay (anticipated future wage loss)
  • Reinstatement
  • Promotion
  • Pain and suffering
  • Punitive or punishment damages to the employer
  • Attorney's fees
  • Court costs

Even though the situation is dire, employers can still defend themselves from liability, especially if it was a superior who committed the alleged act. This defense includes whether the employer attempted to prevent the harassment, took corrective actions when notified of the harassment, or if the employee did not take advantage of the corrective acts.

It is also important to define reasonable steps for preventing sexual harassment, as it can curb a company's liability. This includes training and implementing a sexual harassment policy, as well as telling employees how to file a formal complaint.

Successful Strategies to Prevent Sexual Harassment at Work

Workers at each level of the company are responsible for helping to end sexual harassment in the workplace. This includes supervisors, victims, and co-workers who may view this behavior. Unfortunately, the most effective way to end sexual harassment is also perhaps the most uncomfortable for people. This burden lies in the victim's hands.

As a victim, confronting the harasser is never easy, but it has been proven as the most effective method for ending the harassment. As soon as the incident occurs, victims should:

  • Tell the offender that the actions are offensive
  • Explain the specific behavior and why it is offensive
  • Ask the harasser to cease his or her actions

This is the best way to stop the harassment, primarily because many harassers do not know that their behavior is inappropriate. If left unchallenged, it could get uglier as time goes along. If the harasser decides to ignore your pleas, then the victim should take their complaint to the next level as outlined by company policy. This may include telling a superior or writing a short email or letter that lets them know that the behavior is offensive.

Most companies outline their sexual harassment policy in the employee handbook. Following these steps can make a profound impact on curbing the harassment. No matter what actions the victim decides to take, the most important thing is to document everything, including:

  • Emails and letters
  • Memos
  • Correspondence, verbally or otherwise, with superiors and the offender
  • Every action taken against the offender
  • Each instance of the offending behavior, including the time, date, those involved, witnesses, reactions, and how the actions impacted work
  • A journal of how the actions affected personal life

By having a paper trail, the victim has evidence to show their employers or a court of law. It also allows victims to recount events vividly and in detail. Not only should these documents be kept at the office, but they should also have backups in a secure location away from the office. Confiding in friends and family is also a way to reduce stress or sadness when combating sexual harassment in the workplace. With this safety net, victims are more apt to deal with the often-prolonged process of a court case, lawsuit, or facing the accuser.

If the employer seems apprehensive or clueless, union members may go through the channels in their union to file a formal grievance. In most instances, unions have a specific person that deals with the process. When in doubt, get a copy of the union's collective bargaining agreement. Many times, it outlines the steps to take when a person feels like they are a victim of sexual harassment.

Finally, do not let fear keep you from voicing your issues. By law, employers can’t take any retaliatory action against employees who speak up or file a complaint of sexual harassment.

If you need help with anything regarding sexual harassment at work, 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.