You would think that sexual harassment in the workplace is about as common as the three martini lunch—A relic of the past. You would be wrong. As long as people are employed in the workforce, there will be sexual harassment. Sexual harassment is one of the most common types of complaints asserted against an employer. Women are the most likely victims and men are the usual suspects. However, claims by men and same sex claims are not uncommon.
Sexual harassment is recognized as a form of sex discrimination that violates both California and federal law.
There are two types of sexual harassment:
Quid pro quo: When submission to unwelcome sexual advances or requests for sexual favors is made a condition of employment. For example, if you go out on a date with me, I will hire you. Or, if you go out with me, you can keep your job or even get a promotion. Quid pro quo sexual harassment can get pretty graphic and this is my best attempt at a G rated example.
Hostile work environment: An employee is subject to unwelcome verbal or physical sexual behavior, including requests for sexual favors and other conduct of a sexual nature that is either so severe or pervasive that it adversely affects her or his ability to do work. Note, the victim doesn’t have to show he or she can’t do the work, just that his or her ability to do the work has been affected.
Hostile work environment is the most common form of sexual harassment.
To prevail in such situations, the victim must prove that the sexual harassment was severe or pervasive enough to alter working conditions and to create an abusive environment.
There are two ways “severe or pervasive” must be proven:
- The victim must demonstrate that he or she found the conduct sufficiently severe or pervasive to interfere with the work environment; and
- A reasonable person would also agree that the conduct is severe or pervasive. Of course, if the victim is a female, a reasonable woman standard is used and if the victim is male, it’s a reasonable man standard.
Whether or not conduct is severe or pervasive will be determined from the totality of the circumstances. Such circumstances include:
- The frequency of the conduct;
- The severity of the conduct;
- Whether the conduct was physically threatening or humiliating or was a mere offensive utterance;
- Whether the conduct reasonably interfered with the victim’s work performance.
Remember, the standard is severe or pervasive. The more severe the conduct, the less it has to be pervasive (i.e., occurring frequently). While one raunchy joke will not be considered severe or pervasive, three times a week and constantly directing it at one employee will. On the other hand, one physical touching—an unwanted kiss or a squeeze of the buttocks will. Complimenting a woman on her outfit is fine, but going into detail a few times about how good her body parts look and how they make you feel will. The more severe, the less frequency the conduct will have to occur before being considered sexual harassment.
Effects of Sexual Harassment on Victims
Sexual harassment has several serious consequences for the victim. Depending on the severity and duration of the harassment, many victims of sexual harassment suffer depression, anxiety, or feeling of shame, and betrayal. The aftermath may even be more damaging, such as employer retaliation, backlash, and victim blaming. Depending on the victim’s experience, these effects can vary from mild to severe.
Because sexual harassment is serious for the victim and the employer, the law requires the victim to act quickly. If the victim does not bring a claim for sexual harassment in a short period of time, the victim’s rights and ability to recover damages simply expire. If you feel that you have been the victim of sexual harassment it is very important to discuss the situation with an employment attorney as soon as possible.
Do you think you may have been a victim of sexual harassment?