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Have specific questions? Visit our FAQ section for quick answers.
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Sexual Harassment : The Basics Sexual harassment. Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC) as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
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| The U.S. Supreme Court has ex-plained that there are two basic types of unlawful sexual harassment. The first type involves harassment that results in a tan-gible employment action. An example would be a supervisor who fires a subordi-nate for refusing to be sexually cooperative. The imposition of this crude "put out or get out" bargain is often referred to as quid pro quo ("this for that"). This kind of sexual harassment can be committed only by someone who can make or effectively influence employment actions (such as firing, demotion, and denial of promotion) that will affect the victim. A second type of unlawful sexual ~ harassment is referred to as hostile environment. Unlike a quid pro quo, which only a supervisor can impose, a hostile environment can result from the gender-based unwelcome conduct of supervisors, co-workers, customers, vendors, or anyone else with whom the victim interacts on the job. These behaviors can create liability if they are based on the affected employee's gender and are severe or pervasive, as explained in the next section. Nonetheless, even if unwelcome conduct falls short of a legal violation, employers have moral and organizational reasons as well as legal in-centives to address and correct that conduct at its earliest stages. The conduct constituting sexual harassment is not always sexual in nature. One court held that a man's violent physical assault on a woman was sexual harassment because the assault was based on the woman's gender, even though there was nothing sexual about the assault itself. Sup-pose, for example, that men sabotage the work of a female co-worker because she is a woman. Even if the men don't engage in sexual behavior, such as telling off-color jokes or displaying pornographic photos on the walls, their behavior is sexual harass-ment because the behavior is based on the woman's gender. Harassment on bases other than sex. The hostile environment type of harassment described above can also applies to conduct based on other protected statuses, such as race, color, religion, national origin, age, and disability. In a recent case litigated by the Rapaport Law Firm in New York, we successfully argued that a supervisor’s use of racial slurs (audiotaped by our clients) constituted harassment. In that case, the Court relied upon a substantial body of case law pertaining to racially abusive language and its effect in Regardless of whether an abusive conduct relates to an employee’s gender, race, religion, or some other prorected status the key for success is to provide that there was unwelcome conduct based on an employee's protected status which was severe enough to affect the employee's employment. Once these issues are established, we must also show that the employer is liable for the conduct in questions. Because of the complexity of these issues, and the significant burdens imposed by the law on employees, it is essential that you retain a law firm experienced in discrimination matters. When Does a Work Environment Become Hostile? To create a hostile environment, unwelcome conduct based on a protected status must meet two additional require ments: (1) it must be subjectively abusive to the person(s) affected, and (2) it must be objectively severe or pervasive enough to create a work environment that a reason-able person would find abusive. To determine whether behavior is severe or pervasive enough to create a hostile environment, the finder of fact (a court or a jury) considers these factors: • the frequency of the unwelcome dis-criminatory conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating, or a mere offensive utterance; whether the conduct unreasonably inter-fered with work performance; whether the conduct unreasonably inter-fered with work performance; the effect on the employee's psychologi-cal well-being; and whether the harasser was a superior in the organization. Each factor is relevant-no single factor is required to establish that there is a hostile environment. Relatively trivial, isolated incidents generally do not create a hostile work environment. For example, one court found no legal violation where a woman's supervisor, over the course of a few months, had asked her out on dates, called her a "dumb blonde," placed his hand on her shoulder, placed "I love you" signs in her work area, and attempted to kiss her. unlawful harassment. One factor to con-sider is the reasonable sensibilities of the person affected. Some courts state that men and women, as a general rule, have different levels of sensitivity-conduct that does not offend most reasonable men might offend most reasonable women. In one study, two-thirds of the men surveyed said they would be flattered by a sexual approach in the workplace, while only 15 percent would be insulted. The figures were reversed for the women responding. Differing general levels of sensitivity have led some courts to adopt a "reasonable woman" standard for judging cases of sexual harassment. Under the standard, if a reasonable woman would feel harassed, harassment may have occurred even if a reasonable man might not see it that way. Because the boundaries are so poorly marked, the best course of action is to avoid all sexually charged conduct in the workplace. You should be aware that your conduct might be offensive to a co-worker and govern your behavior accordingly. If you're not absolutely sure that behavior is sexual harassment, ask yourself these questions:
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