As a number of high-profile allegations have raised awareness about workplace sexual harassment, it's more important than ever for employers and employees to understand what sort of behavior crosses the line.
According to the Equal Employment Opportunity Commission (EEOC)—the federal agency that enforces workplace discrimination laws—sexual harassment includes unwanted sexual advances, requests for sexual favors, or offensive verbal or physical conduct of a sexual nature that:
(29 CFR § 1604.11 (2018).)
Both men and women can commit sexual harassment, and both can be victims of it. The harasser and victim need not be of the opposite sex.
Workplace sexual harassment is not limited to the physical confines of the workplace—it can also occur between workers in a purely social setting, such as at a birthday party hosted by a colleague.
While harassment is often committed by a supervisor against a subordinate, it can just as easily happen between two colleagues at the same level. In addition, if a company's clients or customers harass an employee, the company can be held responsible if it knew or should have known about the harassment and didn't try to stop it.
The following types of conduct can be considered sexual harassment, depending on the context:
Sexual harassment includes words and conduct not only related to sexual desire, but also based on gender stereotyping. For example, an employee who says that "most women can’t handle this job" could be committing sexual harassment. (For more information, read our FAQs on workplace sexual harassment).
Not every hug or hand on the shoulder constitutes sexual harassment, nor does every comment about one’s appearance or risqué joke. While it's true that employees should tread carefully in these areas, context is key. For example, if a long-time employee is retiring and gives her colleagues a hug on her last day, it's probably safe to say she didn't commit sexual harassment. The same is likely true if an employee simply says she doesn't like a coworker's new outfit.
Of course, any behavior that interferes with a person's ability to work or causes a hostile or intimidating workplace environment will generally constitute harassment. Although sexual harassment claims often contain multiple instances of bad behavior, even a single comment, joke, or gesture can be considered harassment if it is particularly offensive.
Some sexual harassment cases are clear-cut, such as the boss sending his secretary unwanted explicit text messages. But most instances of harassment are more subtle—and harder to prove.
It's crucial to collect as much evidence as possible to prove a sexual harassment case. Emails, photos, and recordings tend to make compelling evidence when they're available, but many instances of harassment aren't in writing or recorded. In cases involving that kind of harassment, victims should write down what happened as soon as possible, making sure to note who was involved, exactly who did and said what, and where and when the incident happened.
A common issue in sexual harassment cases is whether the behavior in question was actually unwelcome. Harassers often argue that they thought the victim was interested in starting a sexual relationship. Whenever possible, victims of harassment should make clear to the harasser that their conduct is unwanted and inappropriate.
Example: Jane tells her coworker Mark that her boyfriend recently broke up with her, that she's been feeling lonely, and that she's worried she'll never meet Mr. Right. Mark says that Jane deserves someone better—someone like himself. Mark asks Jane out on a date, but Jane politely declines, telling Mark that she doesn't date colleagues. Mark thinks Jane is playing hard-to-get, and he sends her a racy email containing descriptions of sexual acts. In Jane's reply, she writes, "Your message was completely inappropriate, Mark. We're coworkers, and I'm not interested.” When Mark's behavior continues, Jane files a harassment claim with the company's human resources department. Mark tries to defend himself by arguing that Jane had sent him signals that she was interested in a relationship and that his conduct was flirtation, not harassment. When Jane presents the response she previously emailed to Mark, the company's HR department finds that Mark has committed sexual harassment.
If you think someone at work has sexually harassed you, depending on your employer's policies, your first step might have to be filing a claim with your company's human resources department or a manager. Your company's employee handbook or human resources department should be able to explain the process. It might be a good idea to talk to a lawyer before you report the harassment. (See Sexual Harassment: When You Should Talk to a Lawyer.)
If your company's internal complaint procedure hasn't produced adequate results, you should contact an employment law attorney—if you haven't already—to discuss your legal options.
If your employer has at least 15 employees, your harassment claim will likely need to be filed with the EEOC. (42 U.S.C. § 2000e(b) (2018).) If you work for a smaller employer, your claim will probably need to be filed a state agency, such as your state's department of labor. If the EEOC or state agency investigation doesn't resolve the dispute to your satisfaction, you might want to file a lawsuit.
An employment law attorney can explain the law that applies to your situation, guide you through the necessary steps, and make sure that you don't miss important deadlines. A lawyer will also be able to explain what steps you have to follow before suing.
