Legal Definitions of Sexual Harassment

Sexual harassment is a legal term, created for the purpose of ending harassment and discrimination against women and men in the workplace. The term is constantly being redefined and extended in legislation and court decisions. However, not all sexual behavior in the workplace is harassment, and the laws against sexual harassment do not extend to situations outside the workplace or school. The basic definition of sexual harassment comes from the United Stated Equal Employment Opportunity Commission (EEOC): Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. This definition has been further elaborated: Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser's conduct must be unwelcome.
There are two legally recognized types of sexual harassment:
  • quid pro quo sexual harassment
  • hostile environment sexual harassment.
Quid pro quo sexual harassment occurs when an individual's submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual's submission to such conduct is made a term or condition of employment.
  • It is sufficient to show a threat of economic loss to prove quid pro quo sexual harassment.
  • A single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits.
  • Courts have held employers strictly liable for quid pro quo sexual harassment initiated by supervisory employees.
  • A subordinate who submits and then changes her or his mind and refuses can still bring quid pro quo sexual harassment charges.
Hostile environment sexual harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating or offensive work environment even though the harassment may not result in tangible or economic job consequences, that is, the person may not lose pay or a promotion. Employers, supervisors, coworkers, customers, or clients can create a hostile work environment. Hostile environment sexual harassment might include:
  • repeated requests for sexual favors
  • demeaning sexual inquiries and vulgarities
  • offensive language
  • other verbal or physical conduct of sexual or degrading nature
  • sexually offensive, explicit or sexist signs, cartoons, calendars, literature or photographs displayed in plain view
  • offensive and vulgar graffiti
There are two conditions that determine liability for employers in cases of hostile environment sexual harassment:
  • The employer knew or should have known about the harassment, and
  • The employer failed to take appropriate corrective action.
An employer can be held liable for the creation of a hostile environment by a supervisor, by non-supervisory personnel, or by the acts of the employer's customers or independent contractors if the employer has knowledge of such harassment and fails to correct it. An employer may be expected to know about the hostile environment
  • if there was a complaint to management
  • if management failed to establish a policy against sexual harassment
  • if the harassment is openly practiced or well-known among employees
In some cases, courts have applied the Reasonable Woman Standard to define sexual harassment. Reasoning that because women are more often victims of sexual violence than are men, women may be more concerned about whether mild forms of sexual harassment might be a prelude to more violent behavior. Since men are rarely victims of sexual assault, they may not perceive their behavior in the same way. Hence, the court should judge the behavior from the victim’s perspective. However, to prevent abuse of this standard, courts have adopted the “reasonable woman standard” by asking whether a reasonable woman would define the behavior as harassment. Not all courts have adopted this standard.

Third-party sexual harassment describes sexual harassment of employees who are not themselves the target of the harassment. Third-party sexual harassment may be either quid pro quo or hostile environment. Men and women may bring such claims.

Quid pro quo third-party sexual harassment occurs when employees who are not themselves harassed lose potential job benefits to other less qualified employees who submit to harassment.

Hostile environment third-party sexual harassment occurs when employees who are not themselves harassed must work in an atmosphere where such harassment is pervasive. If preferential treatment is given to employees who grant sexual favors, the motivation and work performance of other employees may be negatively affected.

Constructive discharge occurs when the employer deliberately makes the working conditions so terrible that a reasonable person would find them intolerable. Constructive discharge can occur only when the employee quits because of harassment and gave the employer notice of the harassment and an opportunity to remedy the situation.

Retaliation against an employee who opposed sexual harassment or made a charge or participated in an investigation is prohibited under Title VII. Employee behaviors that are protected include:
  • resisting advances
  • registering a complaint of sexual harassment
  • supporting the claim of another employee
  • picketing
  • notifying law enforcement authorities
Retaliation might include:
  • dismissal
  • demotion
  • transfer
  • negative evaluation
To bring a claim of retaliation, an employee must establish the connection between the behavior and the retaliatory response.