Can one incident constitute sexual harassment?
Yes, under some circumstances. In "quid pro quo" cases, a single sexual advance can be considered actionable sexual harassment. Quid pro quo sexual harassment occurs any time a job benefit is offered on condition of the employee’s provision of sexual favors. The harasser must be someone with the power to make employment decisions. Similarly, quid pro quo harassment can also occur if a rejection leads to a specific job-related detriment.
The job-related benefit or detriment described above can occur in any area ranging from promotions to shift assignments and work assignments. Employers should be especially aggressive in their discouragement of quid pro quo sexual harassment, since the harassing behavior of any supervisors or managers is imputed to employers on a strict liability basis. Supervisors and managers are considered to be acting directly on behalf of the employer.
Patterns of Conduct in Sexual Harassment Cases
"Hostile environment" cases may differ from quid pro quo cases, since a single incident does not create a "hostile environment." A hostile environment claim usually requires proof of a pattern of offensive conduct. The more egregious the conduct, the lower the need to show proof of repeated incidents. In that respect, a single incident can constitute a hostile work environment if that incident was severely offensive and prolonged.
Hostile Environment and the U.S. Supreme Court
In a unanimous decision of the U.S. Supreme Court in 2001, a supervisor's isolated crude remark was found insufficient to trigger a sexual harassment case under federal civil rights law. The justices stated that, based on the reasoning in previous cases, sexual harassment refers to a pattern of "severe or pervasive" abuse. According to the ruling, a supervisor's offhand sexual remark is not the type of behavior that supports a sexual harassment claim, though the employee may regard the remark as unlawful harassment.
Harassment in a hostile environment does not have to include explicitly sexual incidents. The definition of a hostile environment is similar to that of an intimidating or offensive work environment. Any conduct on the part of an employer, supervisor or manager that creates such an environment or interferes with an employee’s work performance can be part of a finding of "hostile work environment." Typically, an actual or proposed exchange of sexual favors plays no role in a hostile work environment case. It is this aspect of these court cases that can make proving a case difficult for a plaintiff.
Talk to an experienced, licensed attorney in your jurisdiction for more information on hostile environment or sexual harassment topics.