Closely related to the severe and pervasive requirement is the requirement that to be unlawful, sexual harassment must affect a term, condition, or privilege of employment. While the “severe and pervasive” requirement deals with an objective evaluation of whether the alleged harassment was serious enough to justify liability, this requirement deals with the subjective reaction of the particular victim to the harassment.
Example: A female employee is subjected to frequent sexual jokes concerning women told by a male co-worker at the workplace. The employee might testify that she did not like the jokes, and prove unwelcomeness by showing that she so informed the co-worker. The fact that the jokes concern women may prove that they are gender-related. The evidence might also satisfy the severe and pervasive requirement, if a judge or juror would conclude that a “reasonable victim” would be offended by them. However, if the female employee in this case affirmatively stated that the jokes did not actually have a negative affect on her work or her feeling of well-being at the workplace, her sexual harassment case would fail because the harassment did not affect a term, condition, or privilege of her employment.
Like the severe and pervasive requirement, the requirement that sexual harassment affect a term, condition, or privilege of employment has evolved through court decisions in a way that makes it easier for plaintiff to establish their cases. Prior to the U.S. Supreme Court’s 1993 decision in Harris v. Forklift Systems, Inc., many courts required that a plaintiff demonstrate severe psychological harm from alleged harassment in order to establish that the harassment was illegal. In Harris, the Supreme Court held that a case could be established if the plaintiff reasonably perceived her work environment to be “hostile and abusive.”