Ed Zalewski, who specializes in employment law at J. J. Keller & Associates Inc., says that knowing what qualifies as sexual harassment is key to eliminating it in the workplace. His firm has a manual, “Employment Law Essentials,” available at www.jjkeller.com.
What constitutes sexual harassment?
It may include unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature, according to the Equal Employment Opportunity Commission (EEOC). It also can include remarks that may not be sexual. For example, harassing a woman by making offensive or demeaning comments about women in general may constitute sexual harassment. Cases of “quid pro quo” harassment often involve an authority figure, where promotion or continued employment is conditioned upon submission to sexual advances, while rejection results in loss of opportunity or employment. A “hostile work environment” involves conduct that unreasonably interferes with work performance or creates an intimidating or offensive workplace. The term connotes a legal standard that rises above merely feeling offended.
Why isn’t an offhand comment or teasing considered sexual harassment?
According to the EEOC, the law doesn’t prohibit simple teasing, offhand comments or isolated incidents that are not very serious. Such conduct may violate an employer’s policy, potentially resulting in discipline or termination, but will not affect a reasonable person’s ability to work. The U.S. Supreme Court stated that mere utterances do not sufficiently affect the conditions of employment (Meritor Savings Bank v. Vinson, 1986). Offhand comments may offend the employee but still fall short of a legal violation. For example, a co-worker’s single comment that “women don’t work as hard as men” would be offensive without creating a legal violation. However, repeated abuse from a supervisor that he “shouldn’t expect anything better from a woman” may affect the employee’s performance, and also suggests that he intends to limit advancement opportunities.
Explain the “reasonable person” standard that courts use in determining sexual harassment.
To establish a legal violation, the employee must show that the harassment was so offensive as to affect the employment of a reasonable (or “normal”) person. For example, an employee might show that a constant barrage of abuse caused physical or psychological symptoms such as ulcers, anxiety or emotional distress. However, the law will recognize a violation without these manifestations. Even if harassment does not create physical or psychological symptoms, it can affect job performance, prevent advancement or compel the employee to quit. Factors to consider include the frequency and severity of the conduct, whether it is physically threatening or humiliating, and whether it unreasonably interferes with work performance.
What are factors to consider before going to court over a sexual harassment claim?
Employees should first report harassment to their employer. An employer cannot address conduct that it does not know about and may offer a defense that would have addressed the situation if the employee had reported it. If the employer’s response is not effective, or if the conduct is so outrageous that the employer reasonably should have known about it, the employee may file a charge with the EEOC or a state agency. The employee should be prepared to demonstrate how the conduct interfered with employment, perhaps showing that it occurred with such frequency and severity that it caused an unreasonable amount of stress and affected job performance. Employers might argue that the conduct did not rise to this level or that certain events were taken out of context and should not be considered.
Ed Zalewski, employment law specialist