Article on Sexual Harassment:
WHAT IS SEXUAL HARASSMENT?
There are state and federal laws that protect employees against sexual harassment. Under both Title VII of the Civil Rights Act of 1964 and the Fair Employment and Housing Act, sexual harassment has been recognized as a form of sex discrimination protecting both women and men. Protection is not dependent on the victim's immigration status or whether both the victim and harasser are the same gender. The two types of sexual harassment recognized under these laws are quid pro quo harassment and hostile environment harassment.
Quid pro quo harassment claims arise when submission to unwelcome sexual advances or requests for sexual favors are made a condition of employment or the receipt of employment opportunities. For example, it is sexual harassment if a promotion, pay increase or even time off from work is made conditional on the employee's submission to the unwelcome sexual conduct.
Hostile environment claims arise when there is unwelcome verbal, physical, or visual conduct of a sexual nature that unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment. A United States Supreme Court decision emphasized that only behavior that is objectively offensive as to "alter the conditions of the victim's employment" is illegal. Under this standard, the individual must show that the conduct at issue is so severe or pervasive that it would create a hostile or abusive work environment to a reasonable person. In addition, the individual must also show that the conduct at issue was subjectively hostile or offensive.
Characterizing the harassment as either quid pro quo or hostile environment can materially effect the standards an employer must meet in order to avoid responsibi ity. Courts typically hold employers liable for the actions of its supervisors and agents in quid pro quo cases regardless of whether the employer knew or should have known of the harassment. Employers are also usually held liable in hostile environment cases if a supervisor's harassment rises to the level of a "tangible employment action," such as a discharge, demotion or reassignment. Under either type of harassment case, the harasser is personally liable for his or her actions.
However, court decisions have made it clear that not all conduct is considered sexual harassment. Isolated instances of harassment or even the victim's participation in the conduct may negate a claim that it is sexual harassment. If an employer does not know or have reason to know of a supervisor's alleged harassment in a hostile environment case, it can also escape liability by meeting two requirements. First, the employer must have exercised reasonable care to prevent and correct the sexually harassing behavior. Second, the employer must show that the victim failed to take advantage of any preventative or corrective opportunities provided by the employer. Having a written and very detailed sexual harassment policy may afford the employer with a complete defense in a hostile environment case.
Sexual harassment claim are frequently accompanied by tort actions including assault, battery, wrongful discharge and intentional or negligent infliction of emotional distress. It is therefore important to determine which rights you can legitimately assert, and that these rights must also be raised in a timely manner. Furthermore, depending on which claims are asserted, you are required to exhaust certain administrative procedures before any legal proceeding can be commenced in a court of law.
