According to a 2016 study by the EEOC, around 75% of people who experience workplace harassment fail to bring it up with a manager, supervisor, or union representative. One major reason is that employees fear that they will be retaliated against at work. However, another possible reason for underreporting is that employees who are subjected to inappropriate behavior aren’t clear on when it crosses the line into illegal harassment.
In today’s society, sexual harassment often takes on more subtle forms. Instead of being propositioned for sex or slapped on the butt, a victim might receive suggestive late-night texts, unsolicited discussions of sex, or surprise dates on the pretense of doing work. These days, sexual harassment is just as likely to happen through emails, social media, or other venues outside of the office.
Workplace sexual harassment is illegal under Title VII of the Civil Rights Act. Title VII, which applies to employers with 15 or more employees, outlaws two types of sexual harassment:
While quid pro quo harassment is relatively straight forward, hostile work environment claims can be more difficult to detect. What types of behaviors qualify as harassment? How much is enough to qualify as harassment? We provide some guidance below.
Some workplace conduct is clearly sexual harassment—for example, unwanted kissing, touching of breasts or genitals, butt slapping, rape, other forms of sexual assault, requests for sexual favors, making sexually explicit comments, uninvited massages, sexually suggestive gestures, catcalls, ogling, or cornering someone in a tight space.
While overt forms of sexual harassment certainly still happen in the workplace, more subtle forms of harassment are also on the rise. For example, any of the following actions, can be sexual harassment if they happen often enough or are severe enough to make an employee uncomfortable, intimidated, or distracted enough to interfere with their work:
To qualify as a hostile work environment, the conduct must be offensive not only to the employee, but also to a reasonable person in the same circumstances. For example, a female employee might be truly offended that a male employee complimented her haircut and opened the door for her on the way into work. However, the average person probably wouldn’t consider that conduct alone to rise to the level of harassment.
The following is an example of how a pattern of conduct could lead to a hostile work environment claim.
Example: Elena is an executive assistant. Her boss, Aaron, frequently asks Elena to join him for dinner after work so that they can go over his agenda and other items. These conversations quickly turn personal when Aaron asks Elena about her dating history and sexual preferences. During the workday, Elena catches Aaron staring at her for long periods of time while she works. Aaron sends Elena late-night texts saying that he liked what she wore to work that day or that he can’t stop thinking about her. Aaron also makes a habit of stopping by Elena’s office after everyone else has left for the day to complain about his nonexistent sex life with his wife. Elena makes it clear that Aaron’s conduct is not appropriate and tries to leave, but he stands in front of the doorway, saying that he just needs someone to be nice to him. Aaron’s unwanted attention and sexual conduct continue to escalate over the course of several months.
Here are some other facts to keep in mind about sexual harassment: