Sexual harassment has, in the past ten years, become more noticeable and talked about. The general public is still confused about what constitutes sexual harassment which leads to more jokes and discussion. Those individuals within the anti violence movement understand the ramifications of being subjected to such abuse and realizes its escalating potential.
Sexual harassment if a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964.
Unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment, when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonable interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.
Case law interpreting both Title VII and some state laws distinguishes between two broad categories of sexual harassment: “quid pro quo” and “environment sexual harassment”. A quid pro quo claim involves allegations that submission to unwelcome sexual advances or request for sexual favors was made in a condition to getting, keeping or advancing in a job. A hostile environment claim is based on allegations that the company either created or condoned an intimidating, hostile or offensive work environment.
Quid Pro Quo Harassment
Quid pro quo harassment is generally viewed as a more blatant form of sex discrimination than environmental sexual harassment because it results in a tangible economic loss. An example of quid pro quo harassment might involve a supervisor threatening an employee with demotion if s/he failed to acquiesce to his/her sexual advances. Significantly, the alleged harasser need not explicitly state promotion or continued employment on submission to his request. Rather, it is enough that it be implied from the words or conduct used by the alleged harasser. Because of the vagueness of quid pro quo sexual harassment definition, we provide the following examples of conduct that was deemed by different courts to have met the standard:
- An employee rejected her male supervisor’s sexual advances and was later fired by higher-level administrator purportedly for calling in sick. A male employee who called in sick the same day was not discharged.
- A female resident was discharged from a residency program. She contended that a senior resident had requested a sexual relationship and told her that low-level female residents usually engage in such relationship to ease their way through the residency program.
- A female receptionist refused to have sexual relations with a customer and resisted the owner’s sexual advances. It was found that through his remarks, demands and conduct, the owner made it a condition of the employee’s job that she provide sexual favors to him and to his customers.
- The U.S. Postal Service was held liable for a supervisor’s sexual harassment of a deaf-mute mail sorter. Although the supervisor never explicitly conditioned job benefits on the granting of sexual favors, the court held that discussions of employment topics, such as attendance, leaves of absence and performance appraisals shortly before asking the employee to engage in oral sex was implicit quid pro quo sexual harassment.
Sexual Favoritism as Quid Pro Quo Harassment
Similar, but potentially more troublesome, is sexual favoritism as quid pro quo harassment. These claims involve allegations by an employee denied a promotion or other job benefit that the employee who received that benefit did so because s/he performed sexual favors for a supervisor. The apparent reason the courts allow such claims is that by the employer allowing sexual favoritism, the employer implies to others that if an employee does not submit to such sexual advances, the employee will not receive an employment benefit. The practical effect for employers is that they can potentially be sued by two or more employees for a single act of course of conduct by a supervisor. Thus, there is extra incentive for an employer to prevent this type of quid pro quo sexual harassment.
Hostile Environment Harassment
Hostile environment claims involve allegations that a company (or its employees) either created or condoned an intimidating, hostile, or offensive work environment. Such an environment can be created, for example, by making unwelcome sexual advances, requesting sexual favors, or engaging in other verbal or physical conduct of a sexual nature. A hostile environment exists when an employee’s work environment becomes polluted with unwelcome sexual words or conduct.
When evaluating an employee’s complaint that s/he had been subject to hostile environment sexual harassment, employers will want to keep in mind the elements the employee will have to prove if s/he decide to sue under either Title VII or some state laws.
Hostile Environment claims require the employee to show all the following elements:
- That s/he was subjected to a work environment in which there were sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature. Remember that same-sex harassment is now recognized under federal law;
- That the conduct was unwelcome; and
- That the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
The following are examples of the type of conduct that is prohibited by the statutes governing sexual harassment. You should understand that there is no exhaustive list to which an employer can turn in determining what type of conduct is prohibited.
- Verbal harassment, including epithets (descriptive name or title, derogatory comments or slurs that are based on sex.
- Physical harassment, including assault, impeding or blocking movement or any physical interference with normal work or movement when directed at an individual based on sex, or
- Visual harassment, includes derogatory posters, cartoons, or drawings based on sex.
It should also be noted that non-sexual conduct can support a sexual harassment claim when that conduct is based on sex or gender. In an often cited case, a female police officer sued her employer, alleging that she had been subjected to a campaign of threats, rejections, mockery, and intimidation because of her gender. She did not allege that she was subjected to any overly sexual acts. Even so, the court held that the conduct was actionable because it constituted harassment based on the officer’s gender.
To report a sexual harassment claim
Do not make legal assumptions or give legal advice. Should a caller seek information on how to file a claim, refer them to the North Carolina Department of Labor at 1-800-NC-LABOR (625-2267).