Sexual Harassment

sexharrassFederal law makes it unlawful for an employer to engage in certain kinds of employment discrimination. E.g., 42 USCA § 2000(e), et seq. One such form of discrimination is workplace harassment, which generally refers to unwelcome conduct, based on race, color, religion, age, sex, or national origin, that affects a person’s job.

The purpose of this note is to offer a broad outline of the law of sexual harassment. Individuals and companies facing potential sexual harassment situations are encouraged to consult with counsel at the earliest opportunity.

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other written, spoken or physical conduct of a sexual nature when:

  • submitting to the conduct is either explicitly or implicitly made a term or condition of employment, or
  • submitting to or rejecting the conduct is used as a basis for employment decisions, or
  • the conduct has the purpose or effect of unreasonably interfering with an employee?s work performance or creating an intimidating, hostile, or offensive working environment.

The law of sexual harassment is complicated, and this note can only touch on the broad outlines of the matter. However, the most general summary would be remiss if it did not also touch on the tricky procedural aspects of sexual harassment claims. Accordingly, we begin with a brief digression regarding procedure before addressing what is and is not sexual harassment.

Procedural Requirements

Sexual harassment claims brought under the federal Civil Rights Act must first be presented for resolution to the Equal Employment Opportunity Commission, a federal agency with offices throughout the country. The complaint must be filed with the EEOC within 180 days of the event, except that if a state law has established a parallel procedure with a lengthier period for the state agency filing, the federal deadline will likewise be extended as to claims which are “dual-filed,” meaning which state claims under both federal and state law. The EEOC maintains “corresponding” relationships with state agencies responsible for administering similar statutory schemes, so that a filing may be made either with the state or the federal agency.

An investigating agency may actually conduct an investigation, including subpoenaing documents and questioning witnesses, though the involved agencies are very busy and most cases are not processed in this manner. What happens with any given case largely depends on the office selected for the filing and its workload, as well as the alleged facts and basic proofs supporting those facts offered by a filing complainant.

Investigating agencies may also mediate claims, meaning they will bring the parties together in an effort to reach a resolution. As a practical matter, most claims simply sit at the agency for some period of time, after which the complainant is informed that he or she may file suit.

The “right to sue” letter from the agency may state that no basis has been found for the agency itself to proceed on behalf of the complainant, but this is not evidence that a claim is unfounded, since in many instances the failure to find a basis is colored by the agency’s inability to allocate scarce resources to responsibly explore the basis of the claim. The “right to sue” letter typically offers the complainant a very narrow window of a few months in which suit must be filed.

The federal Civil Rights Act applies to employers of 15 or more people. If an employer employs less than 15 people, a sexual harasment claim must be pressed under state law (assuming the state in which the employer is located has an applicable law). If a claim is based purely on state law, it must be filed in state court. If a claim is based on both state and federal law, it may be filed in state or federal court. If filed in state court, a defendant may “remove” the case to federal court. A prevailing party is entitled to an award of costs and attorneys fees, which is a departure from the standard “American Rule” that each party bears its own attorneys fees regardless of who wins.

Whichever court ultimately processes the case, a complaining employee must prove, by a preponderance of the evidence, each allegation necessary to support liability . Under this standard, the greater (or on balance more convincing) evidence must show that the fact is more likely true than not true. This is a much more forgiving standard than the “beyond a reasonable doubt” standard applicable to criminal proceedings; a fact finder may have reasonable doubts about which of two conflicting versions is true and still conclude that a preponderance of the evidence favors one version over the other.

Substantive Issues

There are two basic types of unlawful sexual harassment.

1. Quid Pro Quo

The first involves harassment resulting in a tangible employment action. A classic example would be a supervisor who passes over, transfers or fires a subordinate for refusing his or her sexual advances. This is often referred to as quid pro quo (“this for that”). This kind of sexual harassment can be committed only by a person who can make or effectively influence employment actions that will affect the victim. Generally, quid pro quo actions are limited to sex and, perhaps, religion.

Cases based on quid pro quo sexual harassment generally turn on the ability to prove that a tangible employment action was threatened or taken with the intention to elicit a response from a complaining employee. The example offered above – adverse employment action taken against an employee who refuses a supervisor’s sexual advances – might appear to be the easy case, but there is no such thing as the easy case where questions of fact are not settled.

For example, we can anticipate the following typical defenses to a quid pro quo sexual harassment claim: the alleged advance was never made; regardless whether the advance was made, the action was taken for a proper business purpose; the action taken was not truly adverse. Each of these defenses involve questions of fact, to be resolved by a judge or jury, depending on the election of the parties.

The plaintiff bears the burden of proving by a preponderance of the evidence that the advance was made. Sometimes advances are not boldly articulated and must be divined from circumstances, such as a string of prior individuals of the same sex as the complainant who advanced or were fired depending on their sexual relationship with a supervisor and general knowledge of this reaching the complaining employee.

When a proper business purpose defense is made, the defendant must show by a preponderance of the evidence that the alleged purpose is a pretext and the real purpose is to discipline the employee for not complying. Evidence relevant to this might be the employee’s performance ratings compared to the ratings of other employees, a drop in performance ratings following an employee’s refusal to comply, and so forth.

Likewise, whether an employment action is truly adverse involves fact questions on which the plaintiff must prevail by a preponderance of the evidence. For example, if the action is failure to promote, the complaining employee must show some entitlement to be promoted under the circumstances. If the action is a transfer, the employee must show that the transfer was punitive. In some cases, an employer will argue that a transfer was for a proper business purpose such as beefing up a weak staff at one office or division with better-qualified staff (including the complaining employee) from another. Or the employer might argue that the transfer was effected to defuse an impossible situation where an employee was complaining about harassment but the employer was unable to establish actual harassment; rather than flip a coin or simply choosing to believe the more senior employee, the employer will argue that it sought to preserve two valuable employees who were not getting along by separating them

2. Hostile Environment

The second type of unlawful sexual harassment is referred to as hostile environment. Unlike quid pro quo, which requires an empowered supervisor, a hostile environment may arise from unwelcome conduct of supervisors, co-workers, customers, vendors, or anyone else with whom the victim interacts on the job. To be liable for a hostile-environment claim, the employer must have knowledge that the environment exists. That knowledge can be proved by complaints about situations arising in the hostile environment.

The behaviors that have contributed to a hostile environment include: using crude and offensive language; discussing sexual activities; telling off-color jokes; using indecent gestures; unnecessary touching; commenting on physical attributes; displaying sexually suggestive pictures or unfulfilled threats to impose a sexual quid pro quo; sabotaging the victim’s work; engaging in hostile physical conduct; and granting job favors to those who participate in consensual sexual activities. The hostile environment type of harassment can also be the basis for claims based on other protected statuses, such as race, color, religion, national origin, age, and disability, but that is beyond the scope of this note.

Focusing on sexual harrassment, these behaviors can create liability if they are based on an employee’s gender and are severe or pervasive. But even where unwelcome conduct technically falls short of a legal violation, there are reasons of morality and morale as well as the obvious benefit of avoiding even unjustified but costly lawsuits to address and correct that conduct at its earliest stages.

Conduct is unwelcome if the objecting party did not initiate it and regards it as offensive or abusive. Some conduct is so out of line that a single instance, such as a blatantly racist statement or epithet, may be sufficient to constitute the offense. Often, however, conduct is not so objectively offensive and the task is to assess the objecting (or potentially objecting) employee’s reaction to it. On the one hand, conduct met with outright objection cannot be readily explained away by an employer. On the other hand, ambiguous objections or mixed messages, often the product of politeness or fear, make life more complicated for everyone involved. Sending mixed messages, which may be verbal but can also take the form of wearing provocative clothing, flirting, or participating in office banter, can make proving a claim more problematic for a complainant and also can inspire ever worsening behavior from a potential offender.

Acts of “sexual harassment ” do not always have to be sexual in nature. Even a violent assault, if based on gender, is sexual harassment. Likewise, sabotaging a co-worker because of that worker’s gender is sexual harassment. Any harassing action that is taken because of an employee’s gender can be sexual harassment. In every case, the questions are whether there was unwelcome conduct, whether the fact that the conduct was unwelcome was known to the party sought to be held responsible, and whether the conduct was severe or pervasive.

In addition to proving unwelcome conduct based on a protected status, a complainant alleging hostile environment must prove that the conduct in question is subjectively abusive to the persons affected and that the conduct is objectively pervasive enough or sever enough that a reasonable person facing such conduct would find it abusive. To assess whether the complainant has met this burden, the finder of fact typically will consider the nature of the conduct in terms of severity, frequency, effect (e.g., humiliating, threatening or simply irritating), position of the alleged “bad actors” (e.g., supervisors or only co-workers), and whether the conduct interfered with work performance or resulted in the complainant suffering from depression or other psychological effects. These factors together establish a claim.

Thus, courts have found that asking an employee out on a date, even more than once, is not by itself sufficient, and that occasional teasing or off-color jokes are also not sufficient. On the other hand, a single instance of offensive intentional touching combined with a few comments over time, or a showing of repeated verbal abuse without more, have established claims. It is pattern, time and severity in combination that make the case.

Consideration of these decisions shows how uncertain the line is between simple bad behavior and illegal sexual harassment and, correspondingly, how important it is for employers to address bad behavior before it rises to a level that would support a sexual harassment claim.


Conduct influenced by sex is as old as the protozoa. In the 21st century, among human beings in the United States, some such conduct can result in workplace morale problems and liability.

This note touches on a few of the many issues that can arise in or give rise to a sexual harassment lawsuit. Its message is that employers must be aware of the conduct of their employees to avoid situations that can give rise to sexual harassment claims, and that employees who find an environment offensive or a job situation intolerable due to improper sexual differentiation must speak up, clearly and unambiguously.

Through candid communication and serious effort to establish reasonably comfortable work environments, we can all reduce the miscommunications that lead to lawsuits, which are costly and grievous for everyone, regardless of who ultimately prevails.

Finally, where an employee believes he or she is the victim of sexual harassment or where an employer has received a complaint from an employee regarding sexual harassment, legal counsel should be consulted as soon as possible to resolve the situation before it blows up into a lawsuit.

By Eric-Eisen

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Posted in: Business & CommercialEmployment Law

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