What is Sexual Harassment Law?
State and federal laws protect employees from unlawful discrimination at workBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on October 6, 2023 Featuring practical insights from contributing attorney Elizabeth Hanley
Use these links to jump to different sections:
- What is Sexual Harassment?
- What Laws Protect Employees From Sexual Harassment?
- Quid Pro Quo Sexual Harassment
- Hostile Work Environment
- What Is the Difference Between Severe versus Pervasive Sexual Harassment?
- Sexual Harassment Beyond the Workplace
- Why Should I Talk to a Lawyer?
- Finding the Right Attorney for Your Needs
Sexual harassment is a form of sex discrimination prohibited by federal and state laws in a variety of contexts, including employment, education, and public accommodations.
When sexual harassment occurs at work, it is important to address it quickly and through the proper channels. If you choose to take legal action against the responsible parties, it will be important to document everything and keep track of deadlines that may affect your case.
Consulting with an attorney who specializes in sexual harassment cases can help you weigh your options. The following is designed to give you an overview of workplace sexual harassment so you feel confident speaking with a lawyer.
What is Sexual Harassment?
“I would explain sexual harassment as an unwelcome advance, whether physical or verbal, that is directed at someone because of their sex,” says Elizabeth Hanley, an employment and labor law attorney at Schroeter Goldmark & Bender in Seattle who represents employees who have been sexually harassed, discriminated against in other ways, or wrongfully terminated.
“A common misperception is that sexual harassment is only about distasteful, sexualized comments,” she says. “While sexual harassment certainly includes that, it can also consist of disparaging comments about someone’s gender or sexual orientation.”
What Laws Protect Employees From Sexual Harassment?
Both state and federal laws protect employees from sexual harassment in the workplace. Federally, sexual harassment is prohibited by Title VII of the Civil Rights Act of 1964. This law acts as a baseline on which some states have enacted sexual harassment laws that are more robust.
As the U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment for its enforcement purposes, it is any:
- Unwelcome sexual advance, request for sexual favors, or physical conduct of a sexual nature that unreasonably interferes with an individual’s work performance or creates an intimidating, hostile, or offensive work environment.
Furthermore, there are two types of sexual harassment under anti-discrimination law: quid pro quo and hostile work environment.
Quid Pro Quo Sexual Harassment
Latin for “this for that,” quid pro quo sexual harassment exists where someone with the authority to take employment action or make employment decisions (for example, to hire, fire, or promote) requires sexual favors as a condition of employment.
The power dynamic here is what’s important, and a coworker or non-decision-making supervisor cannot legally be said to have committed quid pro quo sexual harassment.
The specifics of what you must prove can vary by state, but you will likely need to prove at least the following:
- A person with the power to make employment decisions made a sexual request of the individual;
- Job benefits, including hiring or promotion, were conditioned on the individual’s acceptance of the request;
- Negative consequences, including refusal to hire, demotion, or termination of the individual’s employment, accompanied the individual’s rejection of the request.
Hostile Work Environment
Hostile work environment sexual harassment exists where there are either severe or pervasive instances of unwanted sexual advances, comments of a sexual nature, jokes or disparaging comments about someone’s gender, or requests for sexual acts.
In contrast to quid pro quo harassment, there does not need to be any employee benefits involved. Instead, a hostile environment can exist even if the victim’s employment is never at risk. Additionally, a hostile environment can be created by anyone, including coworkers or non-employees, such as customers.
Depending on the jurisdiction, you might have a hostile work environment claim even if you are not the target of the harassment. For example, general workplace comments or jokes of a sexual nature may be enough to form the basis of a claim.
The Difference Between Quid Pro Quo and Hostile Work Environment Isn’t Always Clear
As the EEOC notes, the distinction between quid pro quo and hostile work environment is not always clear-cut.
For example, a hostile work environment does not stake one’s employment on sexual favors in the way that quid pro quo sexual harassment does. However, a workplace culture marked by pervasive sexual harassment may force an employee to choose between putting up with the environment or quitting.
What Is the Difference Between Severe versus Pervasive Sexual Harassment?
As noted, actions don’t necessarily need to be severe in order to be considered sexual harassment or a hostile work environment. It may be that many smaller actions constitute, over time, a pervasive atmosphere of harassment.
“A lot of ink has been spilled on the question of what is severe versus pervasive,” says Hanley, and it’s something that lawyers and judges have to consider in every case.
That being said, “Severity generally means that a single incident in the workplace is enough to create a sexual harassment claim. For example, severity could mean that a supervisor engages in sexual assault—though, sometimes, even sexual assault is not counted in the court system as severe.”
When a court decides that an act doesn’t count as “severe” under case law, then you’re looking at whether the sexual harassment was pervasive, says Hanley. “Pervasive” can mean anything from:
- Routine sexualized remarks
- Gendered remarks
- Consideration of a person’s gender in performance reviews or decisions related to advancement or opportunity in the workplace.
Sexual Harassment Beyond the Workplace
It’s also important to realize that sexual harassment is not only an employment issue.
“Sexual harassment was traditionally considered an employment claim—cases when a supervisor or coworker engaged in unwelcome conduct directed at someone because of their sex,” says Hanley.
“But to be clear, there can also be sexual harassment outside of the employment context—for instance, in public accommodations. The same legal tests will apply when you consider, for example, a customer harassing someone in a place of public accommodations and what that business’s obligation may be to address that situation.”
Hanley adds that in Washington state, where she practices, as well as other states across the country, “courts have, in the last couple of years, made it clear that businesses have an obligation to protect people who are using the benefit of accessing their premises from sexual harassment and other forms of discrimination.”
Why Should I Talk to a Lawyer?
“Sexual harassment claims can be really complex to bring. So, I really would encourage people to seek an attorney’s advice as soon as they believe they may have been sexually harassed. There are three main reasons,” says Hanley.
1. Guidance on Documentation and Evidence-Gathering
“First, it’s critical that people understand how to both obtain and keep evidence of their sexual harassment claim,” she says. “This is especially true in today’s technological world, with text messages, emails, and tons of metadata and electronically stored information—as well as employment agreements that may restrict what employment-related information people can have in their possession.”
Hanley adds that since perpetrators often ensure that no one else is around before engaging in sexually harassing behaviors, this “can easily give rise to a ‘he said, she said’ situation.” To avoid this conundrum, she greatly prefers that potential clients come to her as soon as possible. “That way, I can help them understand what types of evidence they can gather and what they can’t.”
For example, it’s illegal for individuals to record other people in the workplace without their consent. “They also can’t take employer information. They may even have employment agreements that restrict their ability to keep their own emails.”
In short, evidence-gathering is one of the most important facets of any sexual harassment claim, and an experienced attorney can help you do it effectively and in compliance with the law.
2. Ensuring You Take the Necessary Preliminary Steps to Have a Successful Claim
“Second, there are certain steps that most employees need to take in order to bring a successful sexual harassment claim,” says Hanley. “One of those steps is ensuring that they give their employer an opportunity to resolve their sexual harassment claim.”
Why is it important to give your employer an opportunity to address the claim?
“The reason is that there’s a defense that employers can use called the Faragher-Ellerth Defense, stemming from a U.S. Supreme Court case,” Hanley explains. “It basically says that if your employer has a human resources or employee handbook that provides a process to report sexual harassment, and you failed to follow those procedures, then the employer has a full defense to your sexual harassment claim. It cannot succeed.”
Practically, this means it’s very important to ensure you’re not missing any procedures that your employer may have in place to resolve sexual harassment complaints. If you overlook this, you may be prevented from having a successful lawsuit.
3. Complying With the Statute of Limitations
“The third reason it’s important to consult with an attorney early on is that the statute of limitations or deadline for bringing sexual harassment claims is often complex and not as clear as the deadline for other types of legal claims, such as personal injury or wrongful termination. People often need assistance in figuring out how long they even have to bring their claim.”
And the consequences of miscalculating the deadline are severe: you will be barred from suing.
“As an attorney, it’s one of the saddest things to meet people who have very serious claims with extensive damages and to have to tell them that it has unfortunately expired,” says Hanley. “We want to avoid a situation where someone, because of legal technicalities, is unable to get a fair and just outcome.”
The upshot is to speak with an attorney as soon as you suspect sexual harassment so that you have the best chance of bringing a successful and timely lawsuit.
Below are some common questions you might want to consider when meeting with an attorney and getting legal advice for the first time.
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, search the Super Lawyers’ directory for employment law attorneys in your area who demonstrate experience handling sexual harassment cases. Once you have identified some lawyers, you can begin the process of reaching out for initial consultations or case evaluations.
Additional Sexual Harassment articles
- Should I Sue for Sexual Harassment in Federal or State Court?
- What Legal Action Can I Take Against Online Sexual Harassment?
- What Are My Legal Options if My School Fails to Address a Title IX Complaint?
- How to Report Sexual Harassment in the Workplace
- Can You Sue for Workplace Harassment?
- Navigating Workplace Romance as an Employee
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