Types of Sexual Harassment

There are two types of sexual harassment.

The first type, quid pro quo sexual harassment, arises in situations where the harasser requests sexual activity from the person being harassed (“harassee”) in exchange for workplace benefits or to avoid an adverse employment action. A very basic example of quid pro quo harassment would be the situation where a manager says to a subordinate, “If you don’t have sex with me, I’ll discharge you from employment.” In many situations, such harassment is not so directly perpetrated. Major elements of Quid Pro Quo harassment are:

1. the sexual advances of demands are unwanted;
2. the harassment is sexual; and
3. submission is explicitly or implicitly a term or condition of employment.

Example: A harassing manager might “suggest” to an employee that her prospects for a promotion or pay raise would improve if she slept with him and promote or increases pay when the female employee did in fact sleep with him.

Adverse employment action can also include, job transfer, assignment of office, parking, all other benefits in the workplace in return for sexual favors.

The second type of sexual harassment is referred to as hostile-environment sexual harassment. This type of sexual harassment is defined as sexual harassment in which the harasser creates an offensive or intimidating environment for the harassee due to his or her gender. Major elements of hostile-environment are:

A working or learning environment created by unwelcome sexual behavior;

Offensive, hostile and/or intimidating behavior directed at someone because of his or her gender; or

Conduct that is sufficiently severe or pervasive; the conduct must be such that it detrimentally affects the individual in question and would also detrimentally affect a reasonable person under the same circumstances.

Example: A male supervisor or co workers making repeated sexual remarks to female employees, or displaying pornographic pictures of women, or–in more extreme cases–sexually touching or even sexually assaulting female employees.

Because hostile-environment is often subtle than quid pro quo harassment, it is more difficult for a court–and more difficult for employees and managers–to determine what conduct rises to the level of illegal hostile environment. Courts have generally held that the following five factors must be present for alleged harassment to be illegal under the hostile environment theory:

1. The harassment is unwelcome by the harassee.
2. The harassment is based on gender.
3. The harassment is sufficiently severe or pervasive to create an abusive or offensive environment.
4. The harassment must affect a term, condition, or privilege of employment.
5. The employer had actual or constructive knowledge of the harassment and failed or refused to take prompt and effective remedial action.

There are few people who do not have a strong opinion about sexual harassment. Some people extend their managerial authority over subordinates to sexual control. Many other employees, however, argue that fear of sexual harassment claims significantly lowers their quality of life on the job and claim that fear of sexual harassment liability permeates the workplace. As a result, some employees are afraid of giving compliments to co-workers of the other gender, or afraid even to be in a room alone with the door closed with an employee of the other gender.

Sexual harassment is a difficult area of law for employers to deal with because it is still developing. Therefore, employers and managers cannot always be certain what conduct will or will not expose them to liability for sexual harassment nor what steps they can take to protect themselves. Additionally, common-sense determinations by persons as to what conduct is safe and what conduct is likely to be illegal appear to be difficult to make, because conduct that many males seem to be harmless may be perceived as genuinely threatening and harassing by many females.

Perhaps the best advice for employers who are responsible for avoiding sexual-harassment liability is to watch the developments in sexual harassment law. As the law continues to develop, employers should take a broader rather than a narrower view of what types of conducts constitute sexual harassment. As a practical matter, this means that in uncertain cases, employers are probably better off acting against alleged harassers than giving them the benefit of the doubt and doing nothing. Whether this is fair or not, the liability consequences for acting over zealously against an employee wrongly accused for sexual harassment are less severe than the consequences of not acting against the employee, should a court determine that the employee engaged in sexual harassment. Both males and females can be sexually harassed.

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