What ​Constitutes Sexual Harassment?

Sexual harassment is a form of discrimination that typically involves an individual experiencing unwelcome sexual advances, requests, or favors from another party in the workplace. Sexual harassment is a violation of US Title VII. Any unwanted sexual advances or requests, or other unsolicited physical or verbal conduct that is sexual in nature is considered sexual harassment.

Title VII is a federal law, and it condemns discrimination in the workplace based on sex, color, race, national origin, and religion. This act is applicable to employers who have 15 or more employees and that includes governments (federal, state, and local). Many people still experience sexual harassment in the workplace, even with Title VII's protection.

What Is Non-Sexual Harassment?

If individuals experience abuse or actions regarding their race, religion, skin color, age, or gender, these could also be considered harassment if they interfere with the employee's success or create a hostile working environment.

Sexist, racist, and other negative comments can be considered harassment, as can rude gestures, drawings, or particular clothing. These sorts of workplace bullying should be addressed in the same manner as other forms of harassment and reported to Human Resources. If nothing is done by Human Resources, a harassment claim with the Equal Employment Opportunity Commission (EEOC) can be filed.

Types of Sexual Harassment

The main types of sexual harassment can be broken down into:

  • Hostile work environment: The harassment makes the workplace feel intimidating, offensive, or hostile.
  • Quid pro quo: An employment decision (for example, a promotion, assignment, or keeping a job) is based on a person's submission to the harassment.

Sexual Harassment: What Is Sexual Violence?

Sexual violence can be broken down into three categories:

  1. A completed or attempted sex act that involves a person who is not able to understand the act fully in order to decline to participate or communicate unwillingness to participate in the act because of a disability or being intoxicated.
  2. Use of physical force to make individuals engage in an act of a sexual nature against their will (whether completed or not).
  3. Abusive contact.

Sexual Harassment: Steps to Take if facing Sexual Harassment

If you feel like you are experiencing sexual harassment, you should follow these steps:

  1. Consult your workplace policies or employment handbook if you have one. Most employers will have a policy in place to protect their employees from sexual harassment, so follow it. Take detailed notes about your experience and try to be specific. For example, what was said by the harasser, any witnesses present, and the date, time, and place of each incident.
  2. If you feel comfortable speaking to the harasser, then explain to him or her what he or she is doing that is bothering you. Try to give specifics and ask him or her to stop. If you don't feel comfortable with approaching the harasser, then bypass this step and go straight to a supervisor or the HR department.
  3. Make a supervisor aware of the harassment and tell the supervisor what you have done to address it.

It is important to follow company procedures and document everything because if these have not been followed, and the employer has not been given the chance to stop the harassment, then the employee is likely to lose in court. Complain to your supervisor or Human Resources representative, document the situation, and keep backups of files in a safe place away from the workplace.

If you strongly feel that you have a claim under Title VII, then you have the right to file a discrimination complaint with the EEOC. In the majority of cases, there are only 180 days, or six months, from when a discriminatory act occurs for a person to file a charge, so do not wait to file this complaint. Instructions for filing a charge can be found on the EEOC's website. You do not need to contact an attorney for assistance.

Sexual Harassment: Employer Liability

It is only employers who have 15 or more employees who are subject to Title VII. However, employees in smaller companies are still protected under state laws. In the cases of smaller businesses, if harassment (hostile work environment or quid pro quo) can be proven, then the employer could be liable for issuing compensation (for monetary loss, suffering, and pain), and punitive damages. The liability for this may depend on who committed the offense (whether a coworker or superior) and what action was taken to correct this.

The employer is liable when

  • The harassment is committed by an employee's superior and there is tangible employment action (for example, an individual is fired or demoted, or receives negative changes in their assignments and responsibilities).
  • The harassment creates a hostile work environment.
  • The harassment is committed by an employee's coworker.
  • If the employer knew, or should have known, about the harassment and did not take immediate corrective action.

The employer isn't liable when

  • The employer exercised sufficient care to stop the harassment and has taken responsive action to stop it once made aware.
  • The employee experiencing the harassment unreasonably refused to opt for the corrective measures offered.

If employees file complaints, employers are prohibited from retaliating against them. In some circumstances, retaliation in the real world could occur, so it would be wise for the employee to obtain a copy of their personnel file before filing a complaint, so that they can prove past positive performance and so on, should the worst happen.

If you are experiencing sexual harassment or you are concerned that it may be an issue in your workplace and need further information and guidance, 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.