- submission to or rejection of the conduct by an individual is used as a basis for employment decisions affecting such
- the conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
The U.S. Supreme Court has explained that there are two basic types of unlawful sexual harassment. The first type involves harassment that results in a tangible employment action. An example would be a supervisor who fires a subordinate 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 incentives to address and correct that conduct at its earliest stages.
The conduct constituting sexual harassment may not always be overtly sexual in nature. One court held that a man's violent physical assault on a female co employee in the workplace constituted sexual harassment because the assault was based on the woman's gender, even though there was nothing sexual about the assault itself. Suppose, 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 explicitly sexual jokes or displaying pornographic photos on the walls, their behavior may be deemed sexual harassment because the behavior is based on the woman's gender. In all cases, the totality of circumstances in the workplace must be evaluated.
Harassment on bases other than sex. The hostile environment type of harassment described above can also apply 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.
When Does a Work Environment Become Hostile?
To create a hostile environment, unwelcome conduct based on a protected status must meet two additional requirements: (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 reasonable 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 discriminatory conduct; the severity of the conduct; whether the conduct was physically threatening or humiliating, or a mere offensive utterance; whether the conduct unreasonably interfered with work performance; whether the conduct unreasonably interfered with work performance; the effect on the employee's psychological well-being; and whether the harasser was a superior in the organization.
