Sexual harassment in the workplace is considered to be a form of discrimination under Title VII of the Civil Rights Act of 1964. Sexual harassment of students by those in a position of authority has been ruled to be a violation of Title IX of the Education Amendments of 1972. Regardless of the location and exact law that is applied, sexual harassment can be divided into two types.
Type of Harassment
Quid Pro Quo
In "quid pro quo" harassment, an employee is directly propositioned for sex or related acts in exchange for workplace favors. These favors may include raises, promotions or simply retaining the job. This type of sexual harassment is fairly straightforward, but sometimes hard to prove.
Hostile Work Environment
A "hostile work environment" can also constitute sexual harassment. A hostile work environment might include the permitted display of sexually explicit artwork or photographs, repeated sexual jokes or threats. The behavior must be pervasive and create an uncomfortable atmosphere.
Although many sexual harassment cases are brought by women against male employers, men may be victims of sexual harassment, and both men and women may be subjected to harassment by members of their own sex. Likewise, a coworker may commit sexual harassment even if he or she is not in a supervisory role.
Proving Sexual Harassment
Because each case is different, courts review several different factors in order to determine whether sex harassment has occurred. The courts are particularly concerned about the context of the harassing behavior and the actions of the victim, along with the nature of the business. If the victim willing participated in sexual conversations and jokes, then harassment may be more difficult to prove. Likewise, certain workplaces, such as adult clubs, carry some expectations of certain behaviors that would be inappropriate in other environments.
One of the tests that courts use to determine whether there is a hostile environment is the likelihood that a reasonable person in the same situation would find the situation to be hostile. This test can help to rule out cases in which an unusually sensitive plaintiff brings unreasonable charges. At the same time, it can strengthen the case of a plaintiff who may lack witnesses.
Employer Liability for Sexual Harassment
Employers are responsible for taking reasonable precautions to prevent sexual harassment. They are also responsible for taking steps to remedy sexual harassment if it occurs. However, employers may defend themselves by showing that a sexual harassment policy is in place and is actively being enforced. If the victim does not follow the company's reasonable reporting procedures, then the employer may not be liable. In general, the employer may be held liable if he or she knew or should have known that the harassment occurred but failed to take action against it.