quid pro quo sexual harassment

What is Sexual Harassment?

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.
What is sexual harassment
What is sexual harassment

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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!

Sexual Harassment in the Workplace

What is sexual harassment
What is sexual harassment

One of the most talked about – and misunderstood – aspects of employment law is sexual harassment. This article is intended to provide a brief overview of the law of sexual harassment. Federal Law (Title VII), State Law (New York State Human Rights Law), and City Law (New York City Human Rights Law), all prohibit sexual harassment. The law of sexual harassment is gender neutral – the harasser can be a woman or a man, and the harasser does not have to be of the opposite sex. The harasser may be your supervisor, co-worker or even a non-employee. And you do not have to be the person who was directly sexually harassed--anyone affected by the offensive conduct may bring a valid claim.

There are three components to sexual harassment:

  1. The conduct must be “unwelcome;”
  2. The conduct must be of a sexual nature; and
  3. The conduct must unreasonably interfere with an individual’s work (or create an awful working environment).

Unwelcome Conduct

The first component is that the conduct must be unwelcome. This means that you cannot partake in boorish sexual behavior and joke around one day, and then allege sexual harassment based on that conduct the next. This is not to say that being OK with some conduct makes you OK with all conduct. The best course of action is that if something is unwelcome, you should say so.

Conduct of a Sexual Nature

The conduct must be sexual – it can be comments, physical action, innuendo, showing pornographic materials, or lewd displays in the workplace. If the harassing conduct is based on something else (like race, religion, disability, etc.), you may have a claim for hostile work environment, but for the claim to be sexual harassment, the conduct must be sexual in nature.

Conduct Must Unreasonably Interfere with Employment

The law does not impose a general civility code. For the (1) unwelcome (2) sexual conduct to be actionable sexual harassment – it has to unreasonably interfere with your employment. In other words, it has to be really bad. Some sexual conduct (especially comments), even R-rated conduct, is not actionable if it would not “unreasonably” interfere with an ordinary person’s ability to do his or her job. However, if you do feel offended, you should complain. Even if technically, you have not been sexually harassed, it is unlawful to retaliate against someone for making a good faith complaint of harassment.

If you think that you have been a victim of sexual harassment, you should speak to an NY sexual harassment lawyer. A good employment lawyer can help you determine whether you have a valid claim against your employer and can help you develop a plan to stop the harassment.

Contact our office today for a free consultation.

NY Sexual Harassment Lawyer

Let a NY Sexual Harassment Lawyer Help You

NY Sexual Harassment Lawyers can assist you with any harassment or discrimination issues that you are experiencing at work.  Our lawyers handle a host of other NY Discrimination Law issues.  NY Employment Law, NYC Employment Law and Federal Employment law all protect employees from illegal treatment at work.  Let our NY Sexual Harassment Lawyers help you understand your rights and get what you have earned.

If you believe you are a victim of sexual harassment at work for any reason, please contact a NY Sexual Harassment Lawyer at our firm for a free initial consultation.

Sexual Harassment

Sexual harassment is any verbal or physical interaction which is both unwanted and sexual in nature.  Sexual harassment can also take the form of sexual suggestions or explicit language, or a pattern of sexist remarks. According to the EEOC, sexual harassment occurs, "when submission to or rejection of 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."

Examples of Sexual Harassment

  • Verbal abuse, jokes or conversations about sex
  • Offensive words on clothing, and unwelcome comments and repartee.
  • Touching and any other bodily contact such as scratching or patting a coworker's back, grabbing an employee around the waist, or interfering with an employee's ability to move.
  • Pressure for sex or dates, or unwanted flirting.
  • Transmitting or posting emails or pictures of a sexual or other harassment-related nature.  These can be posters, calendars, signs or clothing.
  • Sexually oriented entertainment at a work related event.
  • Playing sexually suggestive music.
  • Comments on a person’s appearance that make the person uncomfortable because of his or her sex.
  • Unwanted touching.
  • Offering promotions or other job favors for sex, or threatening retaliation for denial of sex.

For more information on NYC sexual harassment, see:  http://www.nyc.gov/html/cchr/html/employment.html

For more information on sexual harassment, see:  http://www.eeoc.gov/laws/types/sexual_harassment.cfm

If you feel that you have been the victim of sexual harassment, please contact us for a free initial consultation.