With all the focus on sexual harassment in the news lately, one thing missing from most of the coverage is an actual explanation of what is (and is not) “sexual harassment”. At least according to the law.
Sounds simple right?
Except that it’s not because the prevailing view of sex harassment differs from that found in the law.
But I will try in a few short paragraphs to sum up decades of sexual harassment law. (Obviously, I can’t but humor me.)
Though the first thing you should know — the federal law on the subject actually doesn’t use the word harassment!
Robin Shea pointed this out a while back in a blog post and I thought it was a good reminder to start with. It’s a definition built from U.S. Supreme Court cases.
- Quid Pro Quo. Sound smart: Basically this for that. It’s a demand (express or implied) for sexual favors for either employment benefit (promotion etc.) or to avoid a negative employment action (firing etc.). Important to this notion is the element of power — that is a supervisor over someone else.
- Hostile Work Environment. The courts have defined this as harassment that is “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.'” In determining whether unwelcome sexual conduct rises to the level of a “hostile environment” in violation of Title VII, the central inquiry is whether the conduct “unreasonably interfer[es] with an individual’s work performance” or creates “an intimidating, hostile, or offensive working environment.” 29 C.F.R. § 1604.11(a)(3).Thus, sexual flirtation or innuendo, even vulgar language that is trivial or merely annoying, would probably not establish a hostile environment.
Note the “severe OR pervasive”. One isolated but severe action can be enough; similarly, smaller actions can be enough if it is rampant throughout a department or company.
But not all sexual conduct in the workplace is illegal. As the EEOC notes in policy guidance:
Sexual harassment is “unwelcome . . . verbal or physical conduct of a sexual nature . . . .” 29 C.F.R. § 1604.11(a). Because sexual attraction may often play a role in the day-to-day social exchange between employees, “the distinction between invited, uninvited-but-welcome, offensive- but-tolerated, and flatly rejected” sexual advances may well be difficult to discern. But this distinction is essential because sexual conduct becomes unlawful only when it is unwelcome. The Eleventh Circuit provided a general definition of “unwelcome conduct” in Henson v. City of Dundee, 682 F.2d at 903: the challenged conduct must be unwelcome “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.”
This notion of welcomeness is critical to any determination of sexual harassment in the workplace.
There’s far more to sexual harassment than a mere blog post can provide. But before we throw around uses of the word in a workplace context, it’s important to understand the legal basis as well. Some of what has been discussed is far beyond sexual harassment; it’s sexual assault.
On the flip side, an single off-color joke isn’t going to rise to the level of sexual harassment.
And note that the use of the phrase “hostile work environment” is tied to a sexual conduct not a boss who is difficult to work with. . As a state court said in another sexual harassment case recently, “[a]n unfortunate fact of life is that the modern workplace is sometimes a rough and tumble environment, where pettiness, inconsideration and discourtesy reign. . . .”
Sexual harassment needs to be vanquished from the workplace; understanding exactly what it is (and is not) will help employers spot it and stop it.