Sexual Harassment: An Overview

by Junaid M. Afeef –

Sexual harassment, like harassment on the basis of race, national origin, age, or disability, is barred by federal law and the laws of most states. Hostile work environment sexual harassment occurs where an employee, because of his or her gender, is subjected to a pervasive atmosphere of unwelcome conduct that unreasonably interferes with the employee's work performance or otherwise creates an intimidating, hostile, or offensive work environment. Contrary to popular conceptions, sexual harassment need not be "sexual" in nature in order to violate the law. While sexual joking, unwanted advances, and offensive pictures, if pervasive enough, may violate the law, unwarranted criticism of an employee's work or generally unpleasant behavior, even if not obviously sexual, can also be sexual harassment if it is directed at an employee solely because of his or her gender.

Quid pro quo sexual harassment occurs where an employee is required to submit to unwelcome sexual conduct as a condition of his or her job, or in order to gain some job benefit. For example, a supervisor who demands that a subordinate have an affair with him or her in order to be considered for promotion commits quid pro quo sexual harassment.

In order to be illegal, the harassing behavior must be "unwelcome and offensive" to its target. An employee who participates in sexual joking or has a consensual sexual relationship with his or her supervisor may have a difficult time proving sexual harassment. On the other hand, an employee need not necessarily complain about harassment in order to recover. An employer will be liable for harassment of an employee by a coworker, client, or customer if the employer knew or should have known of the harassment, and failed to take appropriate action to stop it. While an employee may not be able to show that his or her employer "knew or should have known" of harassment if the employee didn't complain, if the "harasser" has harassed others in the past, and those persons have complained, the employee may be able to show that the employer was "on notice" that harassment was a problem. If, once the employer knows of the harassment, it takes action and the harassment stops, then the employee may not have a claim.

If the harassment is by a supervisor, the employee need not necessarily show that the employer "knew or should have known" of the harassment. Instead, the employer has the burden of showing that it had taken appropriate actions to prevent and correct sexual harassment (such as by distributing a clear sexual harassment policy to all employees and by giving employees an appropriate and accessible person with whom to lodge complaints), and that the employee acted unreasonably in failing to take advantage of those steps. However, where the harassing supervisor has managed to take some adverse employment action, such as disciplining or demoting the employee, the fact that an employer has a sexual harassment policy in place will not protect the employer against a claim of harassment.

Finally, it is illegal for an employer to retaliate against an employee for bringing a complaint or legal claim of sexual harassment, just as it is illegal for the harasser to retaliate against the employee.

© Copyright 2003, Junaid M. Afeef



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