While the term “sexual harassment” is widely known, it may be surprising that sexual harassment – or harassment in general – is not specifically prohibited by the anti-discrimination statutes. Rather, sexual harassment is merely one form of discrimination based on sex.
Sexual harassment victims run the gamut of the working world, from government employees to interns. While the harasser may be a co-worker (or even a non-employee, such as a customer), arguably the most common scenario is one in which a supervisor sexually harasses a subordinate. This is hardly surprising, since the employer-employee relationship is inherently one-sided and characterized by a power imbalance, which some seek to (unlawfully) parlay into sexual conquest.
Federal regulations provide the following definition of sexual harassment (which also applies to harassment based on race, color, religion, and national origin):
Harassment on the basis of sex is a violation of [Title VII of the Civil Rights Act of 1964]. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment. (29 C.F.R. § 1604.11.)
Courts have analyzed sexual harassment claims under Title VII and the NYSHRL under two theories: (1) “quid pro quo” and (2) “hostile work environment”.
The first, “quid pro quo” (which is Latin for “this for that”), arises when submission to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual; i.e., where a supervisor uses the employee’s acceptance or rejection of his advances as the basis for a decision affecting the compensation, terms, conditions or privileges of the employee’s job. Thus, an ultimatum of the form “sleep with me or you’re fired” is the quintessential basis for a “quid pro quo” sexual harassment claim.
The second, “hostile work environment”, is typically based on the cumulative effect of individual acts. To establish an actionable hostile work environment, a plaintiff must show that their workplace is so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered. While under federal and state law a discrimination plaintiff must show that the objectionable conduct was “severe or pervasive”, the New York City Human Rights Law merely requires a plaintiff to show that she was “treated less well” because of her gender.
While there are no bright-line rules, the case law is instructive and provides some guidelines for what conduct constitutes actionable sexual harassment. Such conduct includes:
- Repeatedly asking for dates,
- Making sexually derogatory comments,
- Viewing pornography in the workplace,
- Sending emails with sexually explicit content,
- Making comments about an employee’s body,
- Remarking about an employee’s sex life, and
- Touching intimate body parts, such as breasts and genitals.
The law requires, and employees deserve, a sexual harassment-free workplace. If you believe you have been subjected to sexual harassment, let Pospis Law fight for you. Contact us today to discuss your rights.