What Constitutes Sexual Harassment On The Job?
Sexual harassment includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature related to employment.
How will you know if sexual harassment has occurred or is occurring? It is real and actionable when any of the following statements is true:
- You feel that submission to the conduct in question is necessary to get or keep a job.
- You feel that employment decisions such as raises, promotions and demotions hinge on whether you submit to or reject the conduct.
- The conduct interferes with your work performance or creates an intimidating, hostile or offensive working environment.
What Does Not Rise To The Level Of Sexual Harassment?
Sexual harassment is not cute. It is degrading and humiliating and violates victims’ right to equal treatment under the law.
When it occurs in the workplace, there are specific remedies under Ohio and federal law. At Mowery Youell & Galeano, Ltd., our lawyers have extensive experience representing men and women in the Columbus metro area and central Ohio who have been subjected to sexual harassment or a hostile work environment.
In Ohio, employers have strict liability for the actions of managers and supervisors. However, just because an employer or co-worker made a rude or offensive comment does not mean you have a sexual harassment case.
To determine if you have been sexually harassed, important distinctions must be made:
- No sexual harassment has occurred if the conduct is invited or welcome. Even if harassment has not initially occurred, however, certain incessant behaviors may constitute sexual harassment. An example of this scenario is if an office relationship “sours.”
- Conduct that is uninvited but welcome is not sexual harassment. Again, the potential for sexual harassment may develop after an office relationship dissolves.
Conduct is sexual harassment if it is flatly refused by the victim, and it continues. Conduct is sexual harassment if it is offensive and the victim feels harassed — even if the behavior is tolerated.
Forms Of Sexual Harassment
Sexual harassment can take a variety of forms. While forms of sexual harassment are different, they all still possess the same underlying principles. These forms include: 1) quid pro quo harassment, 2) hostile work environment harassment, 3) sexual favoritism and 4) third-party sexual harassment.
1. Quid pro quo harassment
“Quid pro quo” is Latin for “something for something.” Quid pro quo harassment occurs when an employee is asked, either directly or indirectly, to provide sexual favors in exchange for a benefit at work. Examples of a benefit include promotions and pay advances. As a result, only supervisors or managers can engage in this type of harassment because they possess the authority to provide the benefit needed to be exchanged to create the “something for something” scenario.
2. Hostile work environment harassment
Hostile work environment harassment is evident when the conduct in question makes the workplace intolerable to the individual affected. The intolerability can stem from constant sexual or gender-based activity or comments that interfere with an employee’s ability to do his or her job. This type of sexual harassment can be committed by co-workers or supervisors because no authority is required to create a hostile work environment.
3. Sexual favoritism
Activity fueled by sexual favoritism can give rise to complaints of sexual harassment. An example of sexual favoritism is when an employee is granted a promotion in return for sexual favors. Both male and female co-workers can allege sexual harassment by showing that they were denied an equal opportunity for promotion due to improper sexual conduct.
4. Third-party sexual harassment
In a business setting, customers, vendors or other third parties can engage in sexual harassment. In many instances, business owners have an obligation to tell the harasser to stop making unwelcome sexual advances if an individual complains of such activity.
Who Determines Whether The Conduct Is Offensive?
Whether conduct should be characterized as sexual harassment is viewed from the standpoint of the victim. The courts look to the victim and not the perpetrator to determine whether conduct is offensive. In their judgments, the courts will apply a hypothetical “reasonable person” standard to determine if sexual harassment has taken place — whether a reasonable woman or man confronted with the same conduct would feel that such activity is sexual harassment. The intent of the alleged harasser does not carry much weight in a court of law.
When is sexually based conduct sexual harassment?
Determining where to draw the line concerning workplace behavior can be difficult for someone who believes he or she has been sexually harassed. Sexual attraction between employees is common in the workplace, but such attraction between employees should be a private matter and should never cross the boundary between welcome conduct and harassment.
Common Situations That May Constitute Sexual Harassment
- Pinups in the workplace
- Continuing to ask a co-worker for a date despite earlier refusals
- Rude treatment of women or men based on gender
- Verbal abuse and jokes
- Intentional touching
- Retaliation against employees for complaining about being sexually harassed
Again, please note that this discussion of sexual harassment is extremely general and not intended to educate potential clients about their rights. The intent of this discussion is to provide general information to Ohio employees regarding some of their legal protections.
Please note that an email sent on an employer’s computer system will probably be considered property of the employer and may be read or printed by the employer with or without your permission and could be the subject of discipline.
Documenting Sexual Harassment
Victims of sexual harassment too often remain silent about the activity. You should come forward and report the activities to your human resources department. Our lawyers can advise you about the best way to do this. You should keep a log of offensive statements, actions and emails and keep this log at home. Talking about the offensive conduct to friends and co-workers can also help to build evidence that harassment occurred.