Any of the following: attempting to tie sexual favors a worker gives to a boss or co-worker to that worker's career advancement; consistently refusing to take no for an answer to a sexual question to a co-worker; bothering someone else at the workplace with sexual remarks, images, or contact.

Whether a particular event is or isn't harassment is extremely hard to determine, because one party usually feels it is harassment while the other doesn't or they wouldn't have risked doing it. Either gender can be the person giving or the person receiving the harassment.

Sexual harassment is a type of employment discrimination. Employment discrimination is prohibited by a federal statute, commonly known (among lawyers, at least) as Title VII.

In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court held that Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment.

This standard requires an objectively hostile or abusive environment-- one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive. Harris v. Forklift Systems, 510 U.S. 17 (1993).

Whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances, which may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

These legal standards require extreme circumstances before an employer can be held liable. The isolated innocent joke or sexual advance can hardly be charcacterized as “severe”, “pervasive”, “hostile” or “abusive”, and yet public’s perception is that such conduct might be deemed harassment. This writer’s opinion is that the media far too frequently reports one relatively trivial incident out of a series or pattern, and fails to fill in the context.

One example I can think of was a case against a Colorado utility company. Some of the incidents complained about involved jokes, some of which I think were actually funny. For example, a company poster said “Sexual Harassment Will Not Be Tolerated”, and some joker wrote on it “but it will be graded!” On the other hand, this case stopped being funny when the female worker was subjected to so-called pranks which jeopardized her safety. This made the environment hostile and abusive. Some of her male co-workers wanted her taken out, one way or the other. In other words, it all depends on the context.

This writeup is specific to the situation in the United States; I'm sure rules about this sort of thing are different in the rest of the world, who can somehow find ways of solving problems without the legal system getting involved.

The simple definition of sexual harassment: harassment that occurs which is sexual in nature or gender-based. According to the Equal Employment Opportunity Commission, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when it affects your employment opportunities, it's a condition of employment, or if you're forced to endure a hostile or offensive work environment. One of the controversial parts of this law is that there's no intent required: it's possible to sexually harass someone without knowing you're doing it.

(Note: most definitions of sexual harassment are tailored towards work environments, but the courts have upheld that the same sorts of laws hold in an academic environment. So if you're a student, read "work environment" as "school environment.")

Practically speaking, there are two forms of sexual harassment:

Quid pro quo sexual harassment

From the Latin which means "something for something" (that's what my dictionary said, at least...) quid pro quo sexual harassment is when someone forces someone else to engage in some sort of sexual behavior as a condition of employment (either explicit or implicit).

Examples of this sort of behavior include (this is not an exhaustive list):

  • Being asked out on a date by a boss when you're up for promotion
  • Having a professor imply that in order to get an A in her class you need to sleep with her

Hostile environment sexual harassment

If your work or school environment is set up in such a way that you don't feel comfortable because of sexual behavior, jokes, etc, you may be a victim of hostile environment sexual harassment. There are two sorts of hostile environments you might be exposed to. The first can be a triggered by a single event, assuming that event is serious enough. The second is triggered by repeated exposure to less serious events. (A single instance of a coworker talking about pulling his pants down probably doesn't cross the line into illegality, but if the coworker mentions it every time they see you, that's a bad sign. Likewise, if they actually go through with it and pull their pants down, that's a bad sign.)

Examples of this sort of environment can include:

  • displays of pornography in the work environment
  • repeated gender-based insults, jokes, etc.

The responsibility of the workplace

It turns out that if the employer/school/responsible institution knows that there's a possibility of sexual harassment going on, they're legally required to investigate. If they don't, they can be held liable just as much as the guilty party. This is one of the major reasons that in the past few decades of our litigious society, institutions have cracked down so hard on this, and political correctness training has become an important part of corporate life.

So, practically speaking, what does all this mean?

Well, if you ever do take something like this to court, there are a couple of things to be aware of. In order to decide if behavior is egregious enough to be considered harassment, the courts apply the reasonable woman standard. The thought here is that women are in general more sensitive than men, and that it's better for the law to err on the side of being overprotective. What this means is that if you accuse someone of sexual harassment, the courts will only find them guilty if a "reasonable woman" would agree. This does give the courts quite a bit of leeway; women in, for example, Columbus, Ohio tend to be a bit more conservative than women in San Francisco, California.

It's also important to know what the courts have decided in the past. If there's precedent that what has happened has been decided to be harassment in the past, that means that a good lawyer can convince the court to follow the judgment of the previous court. Unfortunately, the courts have been somewhat inconsistent, so it's very difficult to judge the merits of a sexual harassment case. For this reason, and because most defendants of sexual harassment cases want to shut the plaintiffs up, most victoriuos sexual harassment victims get out of court settlements, the results of which are sealed from public eyes.

Myths about sexual harassment

There are two big ones I've heard:

  • "I can't get sued if I don't realize I was doing it." Wrong. You don't have to have intent to harass, you just have to do it in order to have broken the law.
  • "Sexual harassment is always a man harassing a woman." This isn't part of the law. Men can sexually harass other men. Women can even get in on the action, and be guilty of sexual harassment. (In Michael Crichton's book Disclosure, the protaganist (Tom) is sexually harassed by his female boss. Oh, and I just remembered that like every other book he's ever written, they made a movie out of it, too.)

Some advice if you think you're being sexually harassed

this bit paraphrased from conversations I've had with people who have actually been involved in sexual harassment litigation

First off, if you feel comfortable doing it, tell the person engaging in the behavior that it's unwelcome. If you're feeling particularly vindictive, say that it's illegal. Many people don't realize that what they're doing might be illegal, because that's the way it's always been done around here. Just remember, just because it's the status quo doesn't make it right.

That said, it is important to make sure you're not being too overly sensitive. Make sure that a reasonable person agrees that what you're experiencing is unreasonable, and make sure that person is far enough removed from the situation that they don't see it with prejudiced eyes.

Document everything. If you have a conversation about it, as soon as the conversation is done, write down what was said. Make sure you date it. If you send a complaint to a manager or dean, make sure it's in writing. Save copies of e-mails. If it ever comes down to your word against theirs, it always helps to have written documentation of what was going on. It also helps to have witnesses.

But above all, talk to someone who actually knows what they're talking about.

Note that I am not a lawyer, and none of this is legal advice. I did serve on the Sexual Harassment Peer Counselors and Grievance Board in college, and because of this I have screened sexual harassment training videos for both my school and my current employer. If you think you've been a victim of sexual harassment, I hope this advice convinces you to seek additional assistance to decide what your options are. This might be your company's human resources department, or your school's dean of students office.

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