If you find yourself in the unfortunate workplace situation of wondering, “what is sexual harassment and what is not,” you’ve come to the right place. This article covers everything you need to know about sexual harassment, including the specific instances that constitute sexual harassment and those that don’t.
What Is Sexual Harassment?
Per the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment is a type of harassment driven by sexual motives.
This can include unwelcome harassment, requests for sexual favors, and other spoken or physical harassment that involves a sexual motive. This kind of harassment, however, is not limited to sexual comments or unwelcome sexual advances.
Offensive remarks about a person’s sex or gender are also considered sexual harassment. For example, telling a woman to go make a sandwich or that she belongs in the kitchen, or making other offensive comments about women generally can be considered harassment with a sexual motive.
These unwelcome, offensive comments rise to the level of sexual harassment when they become so frequent, pervasive, and severe that they create a hostile or offensive work environment. An isolated, one-off, inappropriate comment is not going to be considered harassment under the law in most states, although it certainly makes for an uncomfortable work environment.
An isolated incident may become harassment if it results in an adverse employment action – firing or demoting someone for their gender is considered sexual harassment, even if that is the only incident.
Who Can Be a Sexual Harasser?
Well, pretty much anybody; the victim’s direct supervisor, a supervisor working for a different department, a coworker, or even someone who is not an employee of the victim’s employer, like a client or customer, are just a few examples.
In a retail setting, a customer who frequently comes into the store and makes offensive or lewd comments to or about an employee based on his or her sex can be a sexual harasser. It is also important to note that anybody can be the victim of sexual harassment, both men and women, and that anybody, both men and women, can be the harasser.
Additionally, the victim and the harasser can be the same sex. It does not matter what the sex or gender of a person is; if unwelcome sexual advances or offensive comments about a person’s sex are being made frequently or are severe enough, they can count as sexual harassment.
Furthermore, the victim does not necessarily have to be the person being harassed – it can be anyone who is affected by the offensive conduct. Two women may make frequent offensive jokes about men in the workplace, and if a third woman hears and is offended, this may be considered a hostile work environment and rise to the level of sexual harassment.
What Are Some Other Examples of Workplace Sexual Harassment?
A woman who frequently hugs or has other physical contact with her male coworkers and only her male coworkers, especially when that contact is unwelcome, unwanted, and frequent, may be sexually harassing her coworkers.
Two men talking about how they don’t believe young women should be hired as they might become pregnant and take maternity leave or resign may be engaging in harassment if another male coworker hears and is offended.
A male supervisor offering quid pro quo – a promotion in exchange for sexual favors, for example – to his female supervisee is engaging in sexual harassment. Similarly, if that supervisee is fired or demoted or faces other adverse employment actions, such as fewer hours or a less desirable schedule, because she refuses to engage in those sexual favors, that supervisor has sexually harassed her.
Other examples of sexual harassment would be refusing to hire a woman because you believe that she might have children and leave the workforce, or refusing to hire a man as a nurse or teacher because it’s traditionally a female-filled role and you don’t believe that a man can perform the job.
What Is Not Sexual Harassment?
It’s also important to note what is not considered sexual harassment. One offensive joke or inappropriate comment about someone’s sex or gender is not harassment.
A male supervisor making one comment about a woman’s breasts or a man’s bulge is likely not sexually harassing you, even if it’s a disgusting, offensive, and unprofessional comment. In order for it to be sexual harassment, it must be either frequent and pervasive enough to rise to the level of a hostile work environment, or there must be some sort of adverse employment action. An isolated incident can be sexual harassment if a person is, for example, fired for being a woman of childbearing age or a man who refuses to perform sexual favors in exchange for a promotion.
Sexual harassment is a federal law, which means it is illegal to engage in this form of harassment in any workplace in the United States, including all 50 states, the District of Columbia, and all of the U.S. territories.
Title VII of the Civil Rights Act of 1964 has been interpreted to include discrimination based on sex as sexual harassment in the workplace. This law applies to any private employer with 15 or more employees, as well as government organizations, employment agencies, and labor organizations. While about 80% of EEOC complaints made on the basis of sexual harassment were made by women, anybody can be the victim of harassment in the workplace.
It is also illegal for employers to retaliate against someone who makes a claim of sexual harassment. So, if you have complained about sexual harassment and faced adverse employment actions as a result, you may be entitled to additional compensation.
Sex-based discrimination also protects employees from harassment based on gender identity, transgender status, sexual orientation, other LGBTQ+-related claims, and pregnancy.
Additionally, any employment practice or policy that either applies to only one gender or sex or that has a negative impact on people of a certain sex and is not job-related or necessary to the operation of the business may not necessarily be sexual harassment. However, it is considered to be sex discrimination and is still illegal.
For example, suppose a company requires women to wear high-heeled shoes and makeup, even though such women are not in customer-facing positions, and there is no business need for that dress code. In that case, that company may have an illegal policy as it discriminates on the basis of sex and negatively impacts women in that workplace.
Pregnancy discrimination and pregnancy-related disability discrimination is also considered to be a form of sex discrimination by the EEOC. This is, again, considered illegal under Title VII of the Civil Rights Act of 1964, and can be based on current pregnancy, past pregnancy, potential pregnancy, medical conditions related to pregnancy or childbirth such as lactation, having or choosing not to have an abortion, and birth control (contraceptive) usage.
What Are Some Possible Legal Consequences of Sexual Harassment?
The legal consequences of sexual harassment can vary depending on the jurisdiction, the severity of the harassment, and the specific laws in place. That said, here are some possible consequences based on different scenarios.
Filing a Civil Lawsuit Against the Harasser
This is usually the most common legal recourse. Here, victims of sexual harassment may choose to file a civil lawsuit against the harasser and potentially the employer or organization. If they win, they may be entitled to compensation for damages such as emotional distress, medical expenses, lost wages, and legal fees.
PRO TIP | Most of these cases settle out of court without involving the judge or jury. Going to court is usually an option only if both parties can’t seem to agree on a reasonable settlement or the at-fault party refuses to accept responsibility. Cases that settle out of court are usually resolved much faster than those that proceed to trial, and this is because of court backlogs, and other legal technicalities involved in pursuing a lawsuit.
Pressing Criminal Charges Against the Harasser
In some cases, particularly if the harassment involves physical assault, unwanted touching, or other criminal behavior, the harasser may face criminal charges such as sexual assault, battery, or even stalking. However, these consequences will also depend on the nature of the harassment.
Facing Possible Employment Consequences
If the harassment occurs in a workplace setting, such as quid pro quo sexual harassment, the victim may pursue legal action against the employer for failing to prevent or address the harassment. Employers can be held liable (in what is known as vicarious liability) for their employees’ actions if they knew or should have known about the harassment and failed to take appropriate action.
Facing Civil Penalties
Employers found liable for not adequately addressing harassment may face civil penalties. Depending on the particularities of the case, these penalties may include fines and monetary damages awarded to the victim.
Injunctions and Court Orders
In more serious cases, especially if the harassment goes on frequently, courts may issue injunctions or restraining orders to prevent the harasser from contacting or coming near the victim. These orders can restrict the harasser’s activities and interactions and punish them if they break them.
Mandatory Training and Policies
This is usually common among organizations found guilty of not addressing harassment. As a result, they may be required to implement comprehensive anti-harassment policies and provide mandatory training for employees to protect their employees against such instances in the future.
Loss of Employment
Perpetrators may face disciplinary actions, including suspension, demotion, or termination from their employment.
Professional License Revocation
For individuals in professions requiring licenses or certifications, such as doctors, lawyers, or teachers, a sexual harassment conviction can lead to the revocation of their professional licenses.
What to Do If You’re a Victim of Sexual Harassment
If you believe that you have been the victim of harassment or sex-based discrimination in the workplace, you should consult with an employment or sexual harassment attorney. Your attorney can evaluate your claim, help you in gathering evidence of the discrimination, file a claim with the EEOC, and prove your claim.
Your attorney can also help you navigate an appeal if necessary, and they will know the proper procedures and channels to use throughout the process. It’s important that you find an attorney who you are comfortable with as, depending on the nature of the harassment, this may be a sensitive topic to discuss.
It’s also important that you find an attorney who specializes in this area of law. An EEOC claim has specific procedures to follow with unique deadlines, time limits, discovery rules, and other procedural issues.
If you believe that you have been the victim of sexual harassment, you have rights that deserve to be protected. Contact an employment or harassment attorney today and take the next step toward protecting yourself and your rights.