Sexual Harassment: What Is It?

The rules for romantic or sexual interactions between and among men and women have changed dramatically in recent years. As the result of prominent lawsuits and campaigns by committed nonprofit organizations there is now a greater awareness of and sensitivity to the harms inflicted upon both the victim of harassment and society as a whole. Courts and legislators have struggled to define sexual harassment in a way that protects the vulnerable, while also attempting to limit the constraints placed upon individuals in their interactions with one another.

In a federal context sexual harassment is largely viewed as a form of sexual discrimination. There are two kinds of sexual harassment claims, though their distinction has been blurred in recent decisions. Quid Pro Quo sexual harassment occurs when a supervisor or other individual in authority exchanges sexual favors for advantages or to avoid disadvantages in the workplace. Hostile Work Environment sexual harassment claims involve the presence of demeaning or sexual imagery, threats, or jokes that are so pervasive as to create an intimidating and offensive workplace environment.

Sexual Harassment at School

Even while workplace sexual harassment issues became a significant concern for courts and employers, schools remained relatively unconcerned about complaints about sexual harassment at school. Schools and school administrators frequently viewed reported incidents as cases of "kids being kids." The Supreme Court's 1999 decision in Davis v. Monroe County Board of Education finally established that sexual harassment could occur in schools. In Davis, the court held that the sexual harassment suffered by a student that impacted her grades and made her afraid to enter certain areas in the school amounted to a violation of her Title IX equal protection rights.

The court has distinguished between typical schoolyard bullying and sexual harassment, which typically involves schools failing to intervene where behavior is both continuous and offensive. Schools can comply by making reasonable efforts to stop harassment after a complaint is made. Schools now frequently develop policies that clearly express their definition of sexual harassment and the policies and procedures for making a complaint as well as the actions that the school will take to address reported harassment.

Title IX Claims by Student-Athletes and Coaches

Both student-athletes and coaches have taken Title IX claims to complain of sexual harassment in the context of school sports. Student-athletes, like other students, must establish that they were harassed, that both they and their harasser was under the authority of the institution, that the institution was aware of the harassment, and that the harassment was serious enough to have the systemic effect of denying the victim equal access to participate in the athletic program. Coaches claims under Title IX are more frequently related to hiring, pay, and promotion, but if sexual harassment occurs on the job they may also have an actionable claim.