December 28, 2017
The term “sexual harassment” is in constant use these days. Hardly a day goes by without a new story about a politician, celebrity, athlete, businessman, or even judge being accused of it. But what exactly does the term “sexual harassment” mean?
The term means something different in the law than it does in ordinary conversation. If we hear an employee made a sexually inappropriate comment in front of coworkers, or hear that he told a sexually explicit joke in the workplace, we are likely to say or think, “That’s sexual harassment.” And most people would understand what we mean, and would agree with our description.
But that’s not what the law means when analyzing a court case of “sexual harassment.”
Why the difference? And what is the legal definition of “sexual harassment?”
Basically, there are two types of sexual harassment under the law. One is called “quid pro quo.” This is a Latin phrase meaning “this for that.” In a quid pro quo case of harassment, the receipt of employment benefits (such as keeping one’s job, getting a promotion, etc.) is made to hinge on granting sexual favors. A classic case of quid pro quo sexual harassment would be an employee being fired because she wouldn’t go out with her boss. The conditioning of benefits in a quid pro quo case doesn’t have to be explicit. In fact, it rarely is. More often the “quid pro quo” is implied, rather than stated openly. Either way, it is completely illegal.
The other type of sexual harassment is called a “hostile work environment.” In this case, the employee is not pressured to give in to sexual advances in order to keep her job or obtain benefits, but rather is subject to a pattern of inappropriate behavior in the workplace. The behavior is usually sexual in nature, and has the effect of causing employees of a certain gender – usually women – to feel threatened, humiliated, or harassed at work. Examples include physical acts like unwanted touching, and non-physical behavior like lewd comments or “jokes,” and the display of sexuality explicit material.
A legal case for a “hostile work environment” requires that the offensive behavior be “severe or pervasive.” The occasional inappropriate joke or comment usually will not – by itself – be enough to create what the law considers a hostile work environment. But if it is happening every other day it can be a different story. And if the behavior crosses over into the physical – unwelcome touching or assault, for instance – or if the language used is physically threatening, a “hostile work environment” can be created by even a single act.
These lines – such as between what is “severe or pervasive” and what isn’t – can sometimes be difficult to see. Both employees and employers should reach out to qualified employment counsel to understand these issues and protect their rights. Now more than ever.