What Kinds of Behaviors Are Considered Sexual Harassment?

Sexual harassment takes many forms in today's workplace.

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.

What Is Sexual Harassment?

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:

  • Quid pro quo harassment occurs when a supervisor’s request for sexual favors or other sexual conduct results in a tangible job action. Examples include “I’ll give you the promotion if you sleep with me” or “I’ll fire you unless you go out with me.”
  • Hostile work environment occurs when an employee is subjected to unwelcome physical or verbal conduct of a sexual nature that is so severe or pervasive as to alter the employee’s working conditions or create an abuse work environment.

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.

Types of Inappropriate Conduct

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:

  • repeated compliments of an employee’s appearance
  • commenting on the attractiveness of others in front of an employee
  • discussing one’s sex life in front of an employee
  • asking an employee about his or her sex life
  • circulating nude photos or photos of women in bikinis or shirtless men in the workplace
  • making sexual jokes
  • sending sexually suggestive text messages or emails
  • leaving unwanted gifts of a sexual or romantic nature
  • spreading sexual rumors about an employee, or
  • repeated hugs or other unwanted touching (such as a hand on an employee’s back).

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.

Other Facts About Sexual Harassment

Here are some other facts to keep in mind about sexual harassment:

  • Sexist comments and actions can also be harassment. A common misconception is that harassment must be of a sexual nature in order to be illegal. However, under Title VII, offensive conduct that is based on an employee’s gender and severe or pervasive enough to create an abusive work environment is also illegal. For example, a workplace might be hostile if women are told to be more “feminine” or live up to other gender stereotypes, are left out of important meetings, and have their work sabotaged by their male coworkers.
  • Sexual harassment by customers or clients. Most people are aware that sexual harassment by a manager or coworker is illegal. However, under Title VII, an employer has a responsibility to protect its employees from sexual harassment by outsiders as well. This includes customers, clients, vendors, business partners, and more. As long as the employer knows or should know that the harassment is occurring, it must take action to put a stop to it.
  • Sexual harassment knows no gender. Traditionally when people think of sexual harassment, they think of a male harassing a female. While this is still the most common scenario, there have been plenty of incidents of females harassing males. Same-sex harassment—by a male against a male or a female against a female—is also illegal. The harassment does not need to be motivated by sexual desire either. It just needs to be based on the victim’s gender.
If you believe you have been sexually harassed at work, there are certain steps you should take to protect your interests. To learn more, see our article on how to deal with sexual harassment.

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