When Does an Environment Become Sexually Hostile? 

Riley Harvill, Ph.D.

To create a sexually hostile environment, unwelcome conduct based on gender must meet two additional requirements: (1) it must be subjectively abusive to the person(s) affected, and (2) it must be objectively severe or pervasive enough to create a work environment, that a reasonable person would find abusive.

To determine whether behavior is severe or pervasive enough to create a hostile environment, the finder of fact (a court or jury) considers these factors:

• The frequency of the unwelcome discriminatory conduct;
• The severity of the conduct
• Whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
• Whether the conduct unreasonably interfered with work performance;
• The effect on the employee’s psychological well-being; and
• Whether the harasser was a superior in the organization.

Each factor is relevant – no single factor is required to establish that there is a hostile environment. Relatively trivial, isolated incidents generally do not create a hostile work environment. For example, one work environment found no legal violation where a woman’s supervisor, over the course of a few months, had asked her out on dates, called her a “dumb blonde,” placed his hand on her shoulder, placed “I love you” signs in her work area, and attempted to kiss her. (Weiss s. Coca Cola Bottling Co.)

Hostile environment sexual harassment also was not found where women were asked for a couple of dates by co-workers, subjected to three offensive incidents over 18 months, or subjected to only occasional teasing or isolated crude jokes or sexual remarks.

Sexual harassment was found, on the other hand, where women were touched in a sexually offensive manner while in confined workspace, subjected to a long pattern of ridicule and abuse on the basis of gender, or forced to endure repeated unwelcome sexual advances.

These examples simply illustrate how severe or pervasive gender-based conduct must be to be legally actionable (and how blurred the line between lawful and unlawful conduct sometimes is). Given this uncertainty, prudent employers will address incidents of unwelcome gender-based conduct long before they approach the level of severity or pervasiveness that would create a hostile environment as legal matter.