Excerpted from Sexual Harassment in the Workplace by Mary L. Boland © 2005
When employment is conditioned on submission to sexual advances, or when unwelcomed sexual conduct is so severe and pervasive that a reasonable employee would find it to be an offensive working environment, then it constitutes sexual harassment. Courts have carved out different standards for sexual harassment, depending on the conduct and who is doing the harassing. Ultimately, each case turns on its own facts—how severe the conduct was, who did it, and how the conduct impacted the victim of the harassment.
Harassing Conduct: A Continuum of Harm
Sexually harassing behavior involves a range of conduct, from minor offensive words or acts to forced sexual activity and even rape. While there is no minimum level for harassing conduct under the law, the general rule is that the more severe the conduct, the less number of times it has to occur. For example, a single sexual advance may be enough to show sexual harassment if it is connected to granting or denying employment benefits.
However, unless the conduct is very serious, a single incident of offensive sexual conduct or comment generally does not create a hostile environment. This type of claim usually requires a showing of a pattern offensive conduct. A single, unusually severe incident of harassment may be sufficient, however. For example, a single incident of touching a coworker’s intimate body areas is considered severe sexual harassment.
As you read the following section explaining the conduct that has been identified in sexual harassment claims, keep in mind that not all of this type of conduct will be considered severe enough to form the basis for a legal claim of sexual harassment. Most often, there are several types of sexually harassing behaviors present in the same case.
The less physically threatening forms of sexually harassing behaviors are also the most commonly reported. These include the following forms of harassment.
Sexual Joking. Sexual harassment exists where the conduct is unwelcome. Therefore, while some women think that if they join in the joking it will lessen the impact of the harassment, it may, in fact, work against them. It provides evidence that they did not find it objectionable or offensive, and may result in a determination that they were not victims of a hostile environment. In fact, going along with the jokes is not effective in stopping harassment, and in a significant number of cases, just makes it worse.
As unfair as it may seem, the law permits review of provocative dress, bad language, and other conduct of the target of harassment. There are several cases in which complaints of sexual harassment were denied because the targets participated in sexual horseplay or used vulgar or foul language themselves. Ultimately, the determination of whether a work environment is hostile is made after reviewing all of the circumstances and the context in which the behavior occurred.
Sexist Words. Sometimes sexual harassment takes the form of words that are directed at females in general, including:
- calling a woman “doll,” “babe,” “sweetie,” or “honey”;
- using sexist phrases, like “dumb blondes”;
- claiming that “women cry more” or are “too emotional”;
- asking male workers to “think above their belt buckles”;
- announcing that “women can’t manage” or “workers will not work for a woman”;
- stating that “some jobs are just women’s work”; or,
- suggesting that women should be “barefoot and pregnant.”
Sexist Behavior. A harasser’s physical conduct may also contribute to a sexually harassing environment. Examples of sexually harassing conduct without words include:
- looking up and down a person’s body;
- staring at someone;
- cornering a person or blocking a person’s path;
- following the person;
- giving personal gifts;
- hanging around a person;
- intentionally standing too close to or brushing against a person;
- looking up a skirt or down a blouse;
- pulling a person onto one’s lap;
- displaying sexist or sexual calendars;
- writing sexist or sexual graffiti;
- massaging or touching a person’s clothing, hair, or body;
- hugging, kissing, patting, or stroking;
- touching or rubbing oneself sexually around another person;
- making facial expressions such as winking, throwing kisses, or licking lips;
- making sexual gestures with hands or through body movements; or,
- making catcalls, whistling suggestively, or engaging in lip smacking.
Sexual Advances. Some harassment may include physical and verbal sexual advances towards one or more victims. Examples of these include:
- turning discussions to sexual topics;
- telling sexually explicit or suggestive jokes or stories;
- asking about sexual fantasies, experiences, preferences, or history;
- making sexual comments or innuendos;
- telling lies or spreading rumors about a person’s sex life;
- asking personal questions about social or sexual life;
- making sexual comments about a person’s clothing, anatomy, or looks;
- repeatedly asking out a person who is not interested; or,
- making harassing phone calls or emails.
Requests for Sex. This type of sexually harassing behavior typically occurs when a supervisor suggests or promises benefits, like a promotion or wage increase, if the victim engages in sexual activity. These requests include:
- asking a person to spend the night;
- asking a person to have an affair; or,
- asking a person to have sex or to engage in sexual conduct.
Sexual Intimidation. This type of coercion occurs when there is a warning that the employee will lose his or her job or lose a job benefit unless the he or she agrees to engage in a sexual activity. For example, telling a person to go to a motel to negotiate a raise or ordering a person to provide sexual services to avoid a transfer.
Sexual Criminal Conduct. Less common, but more violent, sexually harassing conduct may include:
- threats of harm;
- forced sexual touching; or,
- attempted or completed sexual assault.
Any attempted or completed grabbing, touching, or forcing sexual activity without consent is a sexual crime.