What is sexual harassment?
Not all harassment is sexual harassment and not all sexual conduct is sexual harassment. So then, what is sexual harassment? Sexual harassment is defined as:
- Unwelcome verbal or physical conduct of a sexual nature when
- submission to such conduct is made explicitly or implicitly a term or condition of employment; or
- submission to or rejection of such conduct is used as a basis for employment decisions affecting the employee; or
- such conduct has the purpose or effect of unreasonably interfering with the employee's work performance or creating an intimidating, offensive or hostile work environment.
Let's break this definition down a bit. You will notice that we have underlined some key terms in the definition above. We explain each of these terms below.
- Unwelcome - the conduct must be unwelcome by you. Thus, if you are a willing participant in the conduct at issue, you cannot then turn around and claim sexual harassment. Keep in mind, though, that the unwelcome conduct does not have to be directed at you. For example, it could involve employees talking amongst themselves, or someone else being harassed (even if that someone else does not personally object to the conduct). So long as it impacts your working conditions and it is unwelcome, this definition is met.
- We see a lot of employers attacking the "unwelcome" aspect of employees' claims on the basis that - whatever the conduct - the employee was a willing participant. This is really hard on the employee. A lot of the time, an employee will play along with conduct that they find objectionablejust so that they get along and not make waves. Also, people are afraid of being ostracized if they complain about conduct. The best practice may be to contact an employment attorney as soon as you believe that you are being subjected to unwelcome conduct of a sexual (or any other) nature. A good employment attorney can help guide you through complicated workplace politicking and may help you either end the conduct altogether or wind up in a better place.
- Sexual Nature - the conduct must be of a sexual nature. It is the sexual nature of the conduct that puts the "sexual" into sexual harassment. If the unwelcome conduct is not of a sexual nature, you may still have a claim (e.g. for hostile work environment based on race, national origin, age, etc.), but you do not have a claim for sexual harassment.
- There is almost no limit to what the nature of the conduct could be. The obvious examples are crude words, touching and gestures, but there is no limit to the creative ways that creeps find to harass victims. The term "conduct" is broadly defined, and there are many cases involving almost every imaginable type of conduct.
- Term or Condition of Employment/Basis for Employment Decisions - the conduct has to impact your employment. This can happen in a number of ways. The most common is know as "quid pro quo" (meaning "this for that") sexual harassment. In a typical quid pro quo sexual harassment scenario, the employee must submit to the sexual harassment or else risk being terminated, demoted, marginalized, etc. However, the sexual harassment does not have to quid pro quo in order to impact the terms and conditions of employment. Frankly, if the conduct is so bad that a reasonable person would feel uncomfortable in your working environment, the conduct may rise to the level of sexual harassment.
- Keep in mind that although the conduct must impact your employment, it does not have to occur at your place of employment. Work outings and holiday parties, for example, are hotbeds for sexual harassment.
- Hostile Work Environment - lastly, the conduct has to be really bad. Bad enough that it creates what is known as a hostile work environment. Really, sexual harassment is just one category of hostile work environment - it is a hostile work environment based on sex (as opposed to race, age, disability, etc.). The concept of hostile work environment is too involved for this blog post, but for further information please read this article. But do keep in mind that this is a "reasonable person" standard. Just because an employee may be offended, that alone does not convert otherwise benign conduct into a hostile work environment. It has to be bad enough that a so-called "reasonable person" would be adversely affected.
Questions? Concerns? Contact us - we can help!