Sexual harassment in the workplace is one of the most complicated areas of employment law. Unwanted sexual advances, requests or demands for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates a hostile, intimidating, or offensive work environment. There are two types of sexual harassment in the workplace.
Hostile environment sexual harassment is a situation in which an employer, supervisor, or co-worker does or says things that make the victim feel uncomfortable due to his or her gender. It is the creation of an uncomfortable environment through offensive conduct. For example, if two employees exchange jokes of a sexual nature, neither party could be considered to be the victim of sexual harassment in the workplace. However, if one employee kept telling another employee sexual jokes that the second employee found offensive, it could be considered sexual harassment. Jokes, pictures, touching, leering, unwanted requests for a relationship have all been found by courts to be sexual harassment.
Quid pro quo sexual harassment is a situation in which the employer makes sex a prerequisite to getting something in the workplace. "Quid pro quo" is Latin for "this for that." It refers to a trade. When the trade is on the basis of sex, it is illegal. For example, it is illegal for an employer to say to someone, “have sex with me and you’ll get the job” or “I’ll give you a raise if we go out on a date.” Quid-pro-quo can also include negatives in the sense that a boss cannot fire his employee for refusing to have sex with him.
To bring an action for sexual harassment against an employer or co-worker, the plaintiff must establish that:
The plaintiff found the conduct to be hostile, abusive or offensive
A reasonable person in the position of the plaintiff would consider the conduct hostile, abusive or offensive.
A single incident may be sufficient to establish a quid-pro-quo harassment claim, but typically a pattern of conduct is required to establish a hostile work environment.
Keep in mind that anyone who is offended by a sexually harassing environment may theoretically sue. That means even if you were not the direct victim of the harassment, but felt the harassment interfered with your work performance or created a hostile environment for you, you may be able to establish a claim. However, you’re offense must be reasonable. An extremely sensitive person might not be able to maintain a claim, because his or her feelings of having been offended were not reasonable.
The reasonableness is evaluated by a standard that is the same as a person in the victim's circumstances. For example, what a reasonable woman might think is a hostile environment is not necessarily the same as what a man might think is a hostile environment. If it's a woman who was harassed, it's what a reasonable woman in the same situation would think that sets the standard.
More information on the remedies available when sexual harassment in the workplace is found.