Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, and to labor organizations, as well as, the federal government.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when 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.
Commonly Asked Questions
Many different kinds of conduct that are of a sexual nature may be sexual harassment, if the behavior is unwelcome and if it is severe or pervasive. However, courts have resisted adopting what they consider a workplace “code of conduct” or list of behavior that is automatically considered to be sexual harassment. As a result, if the conduct is not unwelcome or not severe or pervasive, courts will not necessarily consider each type of conduct listed below to be sexual harassment..
Generally, offensive sexual language, unwanted sexual approaches, plus other physical and verbal actions of a sexual nature may all constitute sexual harassment under certain circumstances. Specifically, if accepting or rejecting such behavior has a positive or a negative effect on the victim's employment, or if the offensive behavior creates what is known as a "hostile work environment", a sexual harassment claim may be viable.
Some examples of conduct that may be sexual harassment:
- Verbal or written conduct: Comments about clothing, personal behavior, or your body; sexual or sex-based jokes; requesting sexual favors or repeatedly asking you out; sexual innuendoes; telling rumors about your personal or sexual life; threatening you.
- Physical conduct: Rape or assault; impeding or blocking your movement; inappropriate touching of your body or clothing; kissing, hugging, patting, stroking.
- Nonverbal conduct: Looking up and down your body; derogatory gestures or facial expressions of a sexual nature; following or stalking you.
- Visual displays: Posters, drawings, pictures, screensavers or e-mails of a sexual nature.
When dealing with sexual harassment, there is no one best thing to do, because every situation is different. However, there are two important things to remember as they affect your ability to pursue legal action should you decide to in the future.
- Say no. One legal requirement for sexual harassment is that the conduct be “unwelcome.” Make sure the harasser knows that you consider his or her conduct to be unwelcome. Tell the person that his or her behavior offends you. Firmly refuse all invitations for dates or other personal inaction outside of work. Don’t engage in sexual banter or flirt back in response, or otherwise send mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hope it will go away.
- Report harassment to your employer. It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a coworker, client or customer’s sexually harassing conduct. Tell your supervisor, your human resources department or some other department or person within your company who has the power to stop the harassment. It is best to notify them in writing, and to keep a copy of any written complaint you make to your employer. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. If there is a policy employees are supposed to follow when reporting harassment, you should follow the policy to the fullest extent possible. While you may not think complaining will do any good, your company may later claim it would have stopped the harassment if it had known about it, so reporting the conduct is very important to show that the company was aware of the harassment. Remember, an employer can’t retaliate against you for complaining about sexual harassment or for participating as a witness in an investigation of sexual harassment.
- Contact an Attorney. If you believe you are being harassed at work, you should consult with an experienced employment attorney. An attorney can negotiate with your employer to try to end the harassment and make you whole. An attorney can help you use your company’s internal complaint system, respond to the investigator’s questions, draft your agency charge, and much more. If necessary, an attorney can also help you vindicate your rights in court. It is important to contact an attorney as a claim for sexual harassment must be brought with the federal Equal Employment Opportunity Commission (EEOC) or your state's fair employment practices agency. Depending on your state's law, you have either 180 days or 300 days after the harassment took place to file your charge.
It is possible for males to sexually harass other males, and females can sexually harass other females. The key question the law asks is whether the conduct itself would have occurred if the victim had been of a different sex: Is a male harasser harassing a male employee in a way that he would not harass a female – or is a female harasser harassing a female employee in a way that she would not harass a male employee? This important conclusion was reached by a unanimous U. S. Supreme Court several years ago in the case of Oncale v. Sundowner Offshore Services, Inc.
The sexual orientation of either the harasser or victim is not the only relevant factor to this analysis, as harassing conduct does not have to be motivated by sexual desire. It can also be demonstrated through the harasser’s general hostility to one sex, or evidence showing that the alleged harasser in fact targeted only one sex.
Write it Down
As soon as you experience the harassment, start writing down exactly what happened. Be as specific as possible: write down dates, places, time, and possible witnesses to what happened.
A harasser may try to defend him or herself by attacking your job performance. Keep copies of any records of your work performance, including copies of your performance evaluations and any memoranda or letters documenting the quality of your work.
Talk to Others
If you can do so safely, talk to other people at work about the harassment. You may find witnesses, allies, or others that have been harassed by the same person or who would be willing to help support you .