Sexual Harassment in the Workplace

There is an urban myth, that a claim for hostile work environment can encompass any kind of behavior in the workplace, from compliments about one’s dress or hair to rude behavior to bosses or co-workers who are always angry or boorish. This is simply not true.

Federal and state civil rights laws do not impose a general civility code; simple teasing, offhand comments, and isolated incidents, unless extremely serious, will not amount to discriminatory changes in the terms and conditions of employment. The conduct must be extreme in order to meet this standard.

To establish hostile work environment, a complaining party must show harassing behavior sufficiently severe or pervasive to alter the conditions of their employment. In order to determine whether the conduct is severe or pervasive, a court will look at the circumstances of the workplace, including the following: (1) the frequency of the discriminatory conduct, (2) its severity, (3) whether the conduct is physically threatening or humiliating, and (4) whether the conduct unreasonably interferes with an employee’s work performance.

Conduct can be severe or pervasive, it does not have to be both. The more severe the conduct, the less it needs to be pervasive. For example, a person subjected to unwanted touching may be able to show harassment even if it happened only one time. Likewise, if objectionable words pervade the work place, it may be unnecessary to prove that the words were the worst that could have been used under the circumstances.

Interference with the terms and conditions of one’s employment may include a showing that a complaining party was so objectively and subjectively disturbed by the behavior that they had no choice but to quit. Or, the complaining party could show that they couldn’t get a promotion or a transfer.

The United States Supreme Court is currently deciding how to define adverse action by the employer. Termination readily establishes adverse action, but something short of that – such as transfer to a less desirable position – may be enough to satisfy this prong.

A claim of sexual harassment in the workplace should be taken seriously, even if it ultimately proves not to be true. In the future, I will be discussing how to investigate a claim and how to document that investigation.