How is sexual harassment defined in legal terms?
Sexual harrassment is defined as unwelcome conduct of a sexual nature that affects the terms and conditions of employment or that is sufficiently severe or pervasive so as to create a hostile work environment.
The Unwelcome Factor
In order for conduct to qualify as sexual harassment, first, the conduct must be unwelcome. The law does not prohibit sexually related conduct between consenting adults, although this can determined by individual company policies. It is important to note that “welcomeness” is subjective, which means whether conduct would be considered welcome depends on the personal experience of the individuals involved. In the workplace, what may be welcomed initially can become unwelcome later. It’s important for supervisors, managers and owners to know that the receipient, not the alleged harasser, defines "welcomeness." Additionally, sexual harassment can take place between members of the same sex as well as by a woman against a man.
Quid Pro Quo Harassment
There is a form of unlawful harassment called quid pro quo (Latin for “what for what” or “something for something”). Quid pro quo involves a demand for sexual conduct or contact from an employee. An example is where a supervisor requests either directly or in an implied manner that an employee engage in sexual intercourse with the supervisor in exhange for a raise or a promotion. If quid pro quo harassment by any supervisor can be shown, liability for the harasser and the company is almost definite.
Hostile Work Environment Harassment
The other form of unlawful harassment is called “hostile work environment harassment.” Hostile work environment harassment is where the alleged harassing conduct rises to the level of severe or pervasive conduct. This conduct must make the recipient’s work environment hostile.
Whether or not the working environment is hostile is measured by how "a reasonable person in the plaintiff's position, considering all the circumsntaces," would feel. Oncale v. Sundowner Offshore Services, Inc. (1998) 523 US 775, 81. California and the Ninth Circuit apply a standard of the "reasonable victim" or, in the case of sexual harassment of a woman, the "reasonable woman." At trial, the jury decides whether the conduct is severe or pervasive enough to be considered hostile.
How Employers Can Deter Harassment in the Workplace
As a business owner, your best defense to unlawful harassment claims are all preventive: have a harassment policy in your employee handbook or a stand alone policy, set the tone that unlawful harassment of any kind is unacceptable, train employees, especially your supervisors, on the policy, encourage reporting of violations, immediately investigate all claims, and take immediate and appropriate corrective action, including termination if violation of the policy is sufficiently egregious.
It should also be noted that unlawful harassment includes more than just sexual harassment. It includes harassment based on race, religious creed, color, national origin, ancestry, mental or physical disability and age. Under your state’s law it could also include medical condition, marital status, pregnancy, childbirth or related medical conditions, sexual orientation and other protected classes.
Sexual Harassment and Civil Rights
Sexual harassment is morally wrong and legally actionable. Most sexual harassment claims are made under Title VII of the Federal Civil Rights Act of 1964, which specifically provides that "it shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
In a series of major decisions in 1998, the United States Supreme Court clarified and broadened the law. In a unanimous decision in March, 1998 the Court said: "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated."
The Equal Employment Opportunity Commission
The Federal Equal Employment Opportunity Commission (EEOC) has defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when ... submission to or rejection of such conduct is used as the basis for employment decisions... or such conduct has the purpose or effect of ... creating an intimidating, hostile or offensive working environment."