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Sexual Harassment Basics

Sexual Harassment Basics

   

There are two legally recognized types of sexual harassment: (1) Quid Pro Quo Sexual Harassment; and (2) Hostile Work Environment Sexual Harassment.

Quid Pro Quo Sexual Harassment (Latin translation “this for that”) occurs when an employee with supervisory power makes sexual advances or actions of a sexual nature towards a subordinate and the subordinate’s submission to or rejection of the conduct results in an employment benefit or detriment, such as a promotion or demotion.  Employers are held strictly liable for quid pro quo sexual harassment initiated by supervisors, meaning that employers are held responsible for damages, regardless of any "fault" on their part.  Quid pro quo harassment may be as blatant as a direct sexual solicitation, or it may take the form of more oblique sexual propositions or dating invitations.  A single sexual advance may constitute harassment if it is coupled with the granting or denial of employment benefits.  A subordinate who acquiesces to the advances of his or her supervisor and then later declines the advances, changing his or her mind, may still bring quid pro quo sexual harassment charges. 

Hostile Work Environment Sexual Harassment occurs when unwelcome sexual conduct unreasonably interferes with an individual's job performance or creates a hostile, intimidating, or offensive work environment.  Conduct may be physical, verbal, or nonverbal.  It is not necessary that the harassment result in employment consequences, such as a pay reduction or a promotion.  Employers, supervisors, coworkers, customers, or clients can create a hostile work environment.

Hostile environment sexual harassment might include: direct physical conduct, such as touching, hugging, or kissing; repeated requests for sexual favors; repeated requests for a date; the display of sexually offensive or explicit materials in the workplace; demeaning sexual inquiries and vulgarities; the use of offensive language; conversations of a sexual nature, including jokes and stories; or any verbal or physical conduct of sexual or degrading nature. 

The two conditions that determine liability for employers in cases of hostile work environment sexual harassment are (1) the employer knew or should have known about the harassment, and (2) the employer failed to take appropriate corrective action.  An employer can be held liable for the creation of a hostile environment by its employees, customers, or independent contractors if the employer has knowledge of such harassment and fails to correct it.  An employer may be expected to know about the hostile environment in the following instances: (1) a complaint was made to management; (2) management has not established a sexual harassment policy; or (3) harassment is openly practiced or well-known among employees.

Constructive discharge occurs when the employer deliberately makes the working conditions so terrible that a reasonable person would find them intolerable. Constructive discharge can occur only when the employee quits because of harassment and gave the employer notice of the harassment and an opportunity to remedy the situation.

Retaliation is prohibited against an employee who opposed sexual harassment, made a compliant of sexual harassment, or participated in an investigation.  Protected employee conduct includes the following: resisting advances, filing a complaint of sexual harassment, supporting a claim of another employee, and notifying law enforcement authorities.

Examples of retaliation are dismissal, demotion, transfer, or negative evaluation.  To bring a claim of retaliation, an employee must establish a direct link between the behavior and the retaliatory response.


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