Hostile-environment sexual harassment can seldom be established by a single incident of alleged harassing conduct. To be actionable, hostile-environment sexual harassment must be severe and pervasive.
Sexual harassment at the workplace has been found to be illegal as gender discrimination because it is viewed as significantly interfering with the equality of the genders at the workplace. It is reasonable to conclude that an employee’s ability to effectively perform her job is not significantly interfered with by another employee telling her only one joke.
There are good reasons for requiring sexual harassment to be severe and pervasive to be actionable. First, it must be remembered that sexual remarks or conduct must be unwelcome for them to constitute sexual harassment, and not all employees find sexual remarks or conduct to be inherently unwelcome. Requiring such remarks or conduct to be either extremely serious or to occur over a period of time increases the reliability of a finding that the remarks or conduct actually were unwelcome. More specifically, it is probably safe to conclude that more people would be offended or intimidated by serious sexual conduct such as sexual assault than by less serious conduct, such as sexual innuendoes or jokes. Likewise, requiring less serious sexual remarks or conduct to occur on several occasions gives the harassee opportunities to clearly indicate that the conduct is unwelcome and gives the harasser an opportunity to correct the conduct before he or she is subjected to liability.
Another reason supporting the severe and pervasive requirement is simply that absent such a requirement, state and federal anti-discrimination agencies and the courts could be inundated by lawsuits filed by persons who were offended by relatively mild actions by others. Allowing relatively mild or isolated incidents of sexually offensive conduct to be actionable could create a workplace environment where many employees legitimately would fear to communicate much at all with other employees out of fear of possibly offending them or exposing themselves to liability.
What constitutes severe and pervasive sexual harassment? There are simple answers to this question, such as three unwelcome sexual propositions are actionable but two are not, or two incidents of fondling an employee will always result in liability. The simplest approach to attempting to answer this question is to look at severity of harassment and frequency of harassing conduct as “sliding scales” going in opposite directions. Serious incidents of sexually offensive conduct are not required to occur frequently in order to constitute illegal harassment; indeed, sexual assault or rape would almost certainly be considered as unlawful harassment upon even a single occurrence. On the other hand, less severe conduct such as off-color sexual jokes or sexually oriented comments about an employee’s body would undoubtedly have to occur on a number of occasions before they were determined to create a hostile environment. Also, physical-conduct incidents are generally considered to be more severe than verbal remarks.
The next question is “What constitutes severe and pervasive?” In sexual-harassment law as well as other areas of civil law, courts attempt to apply a somewhat objective standard, rather than the subjective viewpoints of the plaintiff or defendant in the case. The objective standard ordinarily used in civil-law cases other than sexual harassment is commonly referred to as the “reasonable person” standard. In negligence cases, for example, a jury will be presented with the question of whether a “reasonable person” in the position of a defendant who is accused of being negligent would have acted in the same way as the defendant acted, if the “reasonable person” was placed in the same situation. If, in the jury’s mind, the “reasonable person” would have acted differently, the jury will likely find the defendant to be liable for his conduct. It is significant that the “reasonable person” perspective is essentially the perspective of a reasonable person in the shoes of the alleged wrongdoer. In a sexual harassment case, whether conduct is sufficiently severe or pervasive is determined by whether a “reasonable person” would find that the conduct altered the conditions of employment. The reasonableness is evaluated by a standard that is the same as a person int he victim’s circumstances.
- For example, what a reasonable woman might think is a hostile environment is not necessarily the same as what a man might think is a hostil environment. If it’s a woman who was harassed, it’s the woman’s point of view that counts. If the victim is a male, it would be the man’s point of view.
In sexual harassment cases, it may be critical to the outcome of the case whether the “objective” perspective used by a court is that of a “reasonable person” or a “reasonable victim.” In general, males and females have different perspectives as to what types of conduct is severe. Many males perceive sexual comments or jokes, or other sexual conduct, to be less serious than many females would. Thus, a judge or juror adopting the perspectives of a “reasonable” male harasser may perceive the defendant’s conduct to be harmless. On the other hand, the same judge or juror viewing the defendant’s conduct from the perspective of a “reasonable” female in the victim’s position might conclude that the same conduct was offensive and maybe even sexually threatening, and find the defendant liable.