What exactly is “sexual harassment?” Many people, especially women, have various notions of what sexual harassment is and of what the related “hostile environment” is.
Some people believe if they don't like their working conditions or their boss, who might be difficult, that this creates a “hostile environment,” regardless of whether the bad environment is because of sex (or race, or color, or religion, etc.). Others believe that a single off-color, sexually oriented joke in the workplace is “sexual harassment.” Still others believe that if a person comes on to them in a bar or at a party against their desire, that that is “sexual harassment.”
“Sexual harassment” is a term that has entered the mainstream in recent years, most notably with the#MeToo movement. It originates with Title VII of the Civil Rights Act of 1964, although the term “harassment” is not found in that law, specifically.
Sexual harassment is a breed of sex discrimination – not treating someone equally or fairly because of their sex. Under the Civil Rights Act, sex discrimination and harassment are illegal when they occur in the employment arena, not in society generally. So, technically, if a stranger (or at least someone not employed by your employer) hits on you, touches you or kisses you while you're both customers in a bar or at the same party, it's not sexual harassment. Depending on the circumstances, it might be rude and presumptuous, or even a criminal act, such as assault or battery, but it's not sexual harassment under Title VII.
Sexual harassment is generally seen as being a continuum – it can range from an off-color joke to sexual assault – and because not all sexual conduct should result in administrative charges and lawsuits, courts have determined that the conduct endured in the workplace must be severe or pervasive to be recognized as sexual harassment in a legal sense.
If something is “severe,” it's possible that even one single act could qualify as sexual harassment – something such as a rape or other very significant sexual assault. If an act is not severe, then a series of acts must be “pervasive” to be recognized as legal sexual harassment. Pervasive conduct is conduct that is frequent and permeates the workplace; conduct that is essentially inescapable. Courts have often held that even several instances of a coworker making crude remarks, leering or even touching the body do not rise to the level of pervasive.
The fact that courts have set a high bar for what is deemed legal sexual harassment does not mean that everyone who endures something less than “severe or pervasive” conduct is stuck and must simply tolerate it. A person who unwantedly endures any sexual conduct that they find offensive has options: be a silent victim or report the conduct.
All employers should have, and most employers do have, a reporting mechanism in place for complaints or concerns of harassment or discrimination. So employees enduring unwanted sexual remarks, encounters or gestures should report the conduct.
Most employers do not want harassment and discrimination to occur in their workplaces and facilities and will welcome the opportunity to address concerns through their human resources professionals. So employees should report unwanted conduct to their manager, or to a hotline if one is in place. The individual to report harassment to will usually be spelled out in the employment handbook. Follow the handbook and make a report so the employer can investigate.
An employer should not retaliate against anyone making a complaint of sexual harassment. Reporting harassment to your employer (or to an administrative agency such as the federal Equal Employment Opportunity Commission) is protected by law and, legally, employers are prohibited from reprimanding, firing or discriminating against a person for making a complaint or assisting in an investigation of harassment, even if the harassing conduct is not severe or pervasive.
Reporting inappropriate and uncomfortable behavior at work is important. First, it may end the unwanted and offensive conduct that is making your work environment miserable. Second, the employer may not know about the conduct; if you don't report it, they can't do anything about it. In my experience, most employers do not want their employees to be subjected to unwanted and offensive harassing conduct. It makes everyone less productive and makes the recipient unhappy, which may lead to turnover expenses and, potentially, legal expenses. Reporting harassment to your employer to give them a chance to cure it may also be necessary to the future right to recover damages for illegal harassment.
If you're suffering from unwanted harassment at work, speak up. Speak up even before the conduct becomes severe or pervasive. To draw attention to the problem and to remedy it, this is an important first step.
Laura Maser is an attorney with Beers Mallers Backs & Salin.