Understanding sexual harassment and hostile work environments

Both federal and state laws have been passed that prohibit employment discrimination based on sex. Under federal law, sex harassment is a class of sex discrimination in the workplace and is protected under Title VII of the Civil Rights Act of 1964. Specific states have also passed laws pertaining to sex discrimination and harassment in the workplace.

Depending on the circumstance, an employer may be held liable under the law for sexual harassment practices.

Types of sexual harassment in the workplace

The Equal Employment Opportunity Commission, known as the EEOC, defines workplace harassment as unwanted sexual advances or conduct of a sexual nature that unreasonably interferes with the performance of a person's job, or creates an intimidating, hostile or offensive work environment.

The latter is often referred to as "hostile work environment" harassment. This type of harassment isn't quid pro quo but, alternately, is harassment that happens when the sexual conduct is so severe or pervasive that it creates a "hostile working environment" for a particular employee.

For example, comments about women's body parts, calling female employees the "b" or "c" word, talking about sex or strip clubs, showing porn, posting of humiliating sexual photos on a community bulletin board, or sexual jokes are instances that could amount to a sexual harassment hostile work environment.

Burden of proof

Under the law, however, the burden is on the harassed employee (plaintiff) to prove the harassment. The employee must show that:

  • He or she believed the conduct was hostile, abusive or offensive, and
  • A reasonable person in his or her position would also believe the conduct was hostile, abusive or offensive

Courts will also look at various factors to determine whether a hostile work environment existed. Such factors include but are not limited to:

  • The regularity of the conduct
  • The individual doing the alleged harassment (e.g. supervisor or co-worker)
  • The number of individuals perpetuating the alleged harassment
  • The type of conduct (e.g. verbal or physical)

Employer liability

If sexual harassment is proven, an employer can be held liable under the law for sex discrimination. They may be required to provide monetary damages for lost wages, emotional distress, or punitive damages for punishment.

The law is very intricate and many factors play a part in assessing liability. For instance, liability may depend on whether the particular individual who created the hostile work environment was a direct supervisor or a co-worker. Additionally, evidence of whether the employer ratified the behavior may also be evaluated.

An employer may be able to defend and even win a sexual harassment case if the employer has an enforced sexual harassment policy and the employee does not complain.

An employee may have a retaliation case if an employer fires the employee or otherwise retaliates against an employee who complains to the employer about the sexual harassment.

If you have questions about sexual harassment in the workplace or need more information about hostile work environments, consulting with an experienced employment law attorney who understands the intricate nature of the law is advised. Otherwise an employee may ruin any chance of a case in court.