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Employment Law FAQ

What is Sexual Harassment?

Sexual harassment is about power. Men and women, heterosexuals and homosexuals all can be victims. Sexual harassment has been classified by the courts into two categories: quid pro quo and hostile work environment.

Quid Pro Quo

This form of harassment occurs when a boss, manager or other supervisor requests, offers or demands sexual favors in exchange for job benefits, such as a favorable employee review, raise or promotion. The employee is threatened with not receiving the benefit or being demoted or fired for refusal.

To win a quid pro quo claim, the employee must be able to show that the supervisor made a sexual advance, the employee refused the advance and then the supervisor either carried out an action against the employee for the refusal or made the sexual demand a term or condition of employment. Some examples may include continued harassment and unjustified criticism of the employee's performance at work. It also can include instances when a job applicant is not hired because he or she refused the sexual advances of the hiring manager.

Hostile Work Environment

This type of harassment includes instances where an employee is subjected to offensive sexual conduct in general by co-workers, supervisors and even non-employees that is said to "poison" the work environment. Examples of this type of behavior include:

  • Sexual innuendo
  • Jokes
  • Comments
  • Profane language
  • Inappropriate touching
  • Gestures
  • Posting sexually explicit materials

Hostile work environment cases also include quid pro quo discrimination where the supervisor does not carry out the adverse employment action against the employee who refused the sexual advance.

A person can be subjected to one or both types of harassment. In order for an employee to win a sexual harassment case, he or she must be able to show that the conduct was sufficiently severe or pervasive. In hostile work environment cases, this means that the harassment created an intimidating, hostile or offensive working environment and that the employee specifically was the target of the harassment. In some cases, one act of harassment may be enough, but generally the employee will have to show a pattern of harassing behaviors.

Employer Liability

Generally, employers are liable for the acts of their employees. In quid pro quo cases, the courts have found that the employer is strictly liable for the acts of the supervisor. This means that that the employee does not have to prove the employer is liable for the supervisor's acts. If the supervisor is found guilty, the employer is as well.

However, in hostile work environment cases, the employer is only liable for the acts of the employee if the employer had actual or constructive knowledge of the conduct and the employer failed to do anything about it. For example, if the employee made a complaint about a co-worker's conduct and the employer did not investigate the claim, the employer may be held liable for the employee's acts.

For more information about sexual harassment claims, contact an experienced employment attorney who can explain your options under state and federal law.

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