Legal Definitions of Sexual Harassment


According to [Section 2 n]
"sexual harassment" includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:—

i. physical contact and advances; or
ii. a demand or request for sexual favours; or
iii. making sexually coloured remarks; or
iv. showing pornography; or
v. any other unwelcome physical, verbal or non-verbal conduct of sexual nature;


Sexual harassment is a legal term, created for the purpose of ending harassment and discrimination against women in the workplace. The term is constantly being redefined and extended in legislation and court decisions. However, not all sexual behavior in the workplace is harassment, and the laws against sexual harassment do not extend to situations outside the workplace or school.

The basic definition of sexual harassment comes from the United Stated Equal Employment Opportunity Commission (EEOC):

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

This definition has been further elaborated:

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
  • The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
  • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
  • The harasser's conduct must be unwelcome.
Most states also have laws against sexual harassment that may differ slightly from the federal definition.


Facts [+]
the first ever reported case of male sexual harassment was in the United States in 1995, when a female superior at Dominoes pinched the male manager's butt. The EEOC sued the outfit and the manager was paid $237,000 in damages. 

There are two legally recognized types of sexual harassment:
  1. quid pro quo sexual harassment
  2. hostile environment sexual harassment.

The victims of sexual harassment are more likely to bring charges and take legal actions against employers and harassing individuals than they were in the past. According to EEOC statistics, well over 90% of the sexual harassment charges filed have involved harassment of women by men. However, some sexual harassment cases have been filed by men against women managers and supervisors and for same-sex harassment.
Two types of sexual harassment are defined as follows.
  • Quid pro quo harassment occurs when an employer or supervisor links specific employment outcomes to the individuals’ granting sexual favors.
  • Hostile environment harassment occurs when the harassment has the effect of unreasonably interfering with work performance or psychological well-being or when intimidating or offensive working conditions are created.

QUID PRO QUO

Linking any condition of employment—including pay raises, promotions, assignments of work and work hours, performance appraisals, meetings, disciplinary actions, and many others—to the granting of sexual favors can be the basis for a charge of quid pro quo (meaning “something for something”) harassment. Certainly, harassment by supervisors and managers who expect sexual favors as a condition for a raise or promotion is inappropriate behavior in a work environment. This view has been supported in a wide variety of cases.

HOSTILE ENVIRONMENT

The second type of sexual harassment involves the creation of a hostile work environment. In Harris v. Forklift Systems, Inc., the U.S. Supreme Court ruled that in determining if a hostile environment exists, the following factors should be considered.
  • Whether the conduct was physically threatening or humiliating, rather than just offensive
  • Whether the conduct interfered unreasonably with an employee’s work performance
  • Whether the conduct affected the employee’s psychological well-being
Numerous cases in which sexual harassment has been found illustrate that what is harmless joking or teasing in the eyes of one person may be offensive and hostile behavior in the eyes of another. Commenting on dress or appearance, telling jokes that are suggestive or sexual in nature, allowing centerfold posters to be on display, or making continual requests to get together after work can lead to the creation of a hostile work environment.


Sexual harassment occurs when one employee makes continued, unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, to another employee, against his or her wishes.

According to a current issues update from the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment occurs, "when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."


Changing Legal Standards on Sexual Harassment


In 1998, the U.S. Supreme Court issued rulings in three different cases in which charges of sexual harassment were brought by different individuals working for different employers. Grouping these cases together, the U.S. Supreme Court issued decisions that significantly clarified both the legal aspects of when sexual harassment occurs and what actions employers should take to reduce their liabilities if sexual harassment claims are filed. A look at the implications of the three cases follows.


DEFINITION OF SEXUAL HARASSMENT

First, the three decisions make it clear that sexual harassment, whether quid pro quo or hostile environment, or whether with different or same-sex individuals, is illegal. The courts will look at the conduct and actions of both the employer’s representatives and the complainants.

TANGIBLE EMPLOYMENT ACTIONS

As figure indicates, if the employee suffered any tangible employment action (such as being denied raises, being terminated, or being refused access to training) because of the sexual harassment, then the employers are liable. However, even if the employee suffered no tangible employment action, and the employer has not produced an affirmative defense, then employer liability still exists.

AFFIRMATIVE DEFENSE AND REASONABLE CARE
Only if the employer can produce evidence of an affirmative defense in which the employer took reasonable care to prohibit sexual harassment does the employer have the possibility of avoiding liability.