Sexual Harassment

 

Sexual harassment is unwanted sexual or gender based behavior that occurs when one person has formal or informal power over the other.

Three Elements to Sexual Harassment

1. The behavior is unwanted or unwelcome.
2. The behavior is sexual or related to the gender of the person.
3. The behavior occurs in the context of a relationship where one person has more formal power than the others (such as a supervisor over an employee or a faculty member over a student) or more informal power (such as a peer over another).

Terminology

Sexism: Attitudes and beliefs that say one sex is superior to another sex.

 

Sex Discrimination: Basing employment or grading decisions on a person's sex or treating people differently because of their sex.

 

Sexual Harassment: Unwelcome behavior of a sexual nature.

 

Quid Pro Quo: Employment or grading decisions that are conditioned on a person's acceptance or rejection of unwelcome sexual behavior.

 

Hostile Work Environment: Unwelcome sexual or sex-based behavior that creates an offensive, hostile, or intimidating work or education environment and that adversely affects a person's ability to do his or her work.

 

Sex-Based Harassment: Behavior that denigrates ridicules or abuses another person because of his or her sex.

Reasonable Care

"To defend themselves, employers would have to show that they exercise reasonable care to prevent or promptly correct any sexually harassing behavior." Federal Supreme Court, Friday, June 26, 1998.

 

In the current climate, employers could be liable for sexual harassment damages even:

1. If the victim never complained to the company.
2. If the harasser is a customer.
3. If the harasser is a co-worker, not a supervisor.
4. If the harasser and the victim are the same sex.
5. If the investigating supervisor did not pursue the investigation out of respect for the victim's request for confidentiality.
6. If the victim perceives his or her own opportunities impeded by a manager's sexual harassment of, or legitimate consensual relationship with, another employee.

Legal Terms

Quid Pro Quo Harassment: Harasser requires sexual favors of victim in return for some action by harasser, or harasser retaliates against victim for refusing sexual favors.

 

Unwelcome: A way of determining whether conduct is sexual harassment.  'Unwelcome' means conduct was not wanted or willingly permitted.  Victim may 'voluntarily' submit to sexual intercourse, but behavior may still be considered unwelcome.

 

Reasonable Person: A standard set by the U.S. Supreme Court to determine if conduct is sexual harassment.  Thus, conduct is sexual harassment if a reasonable person with the victim's would consider it so.  (Some courts use reasonable woman standard to show that the victim's perspective should be considered and to distinguish between a man's view of conduct and a woman's.)

 

Hostile Environment Harassment:

1. Victim is usually subjected to unwelcome repeated sexual comments, innuendoes, or touching, which alter conditions or interfere with school or employment performance or access to opportunities provided by the institution.
2. Conduct is gender-based, and creates an intimidating or offensive place for employees to work or students to go to school. (Usually requires a pattern of this sort of behavior, but sometimes one incident is enough, if sever or outrageous).
3. Can occur off campus grounds, e.g., school sporting event, on bus, on school trip, in college-sponsored internship program.
4. Can be caused by teachers, professors, administrators, bus drivers or other staff, students, vendors or persons temporarily on campus.