Sexual Harassment in the Workplace
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Most women will tell you that sexual harassment was a thing long before it was recognized under federal and state employment laws as a form of sex discrimination.
This may have become more widely known after the "me-too" movement, but it has been a problem for as long as there have been working women. Many women do nothing about it. Some fear retaliation if they report workplace harassment. Others do not feel they have the resources- time or money- to invest in challenging the behavior. Many, many women who have experienced sexual harassment are also embarrassed and ashamed. It is important to know what sexual harassment is, and what your rights are if you are subjected to it. You can read the answers to some frequently asked questions about sexual harassment in the workplace. Here is also a summary of the basic rules. An outright sexual assault is clearly actionable, and should be reported immediately. There many other behaviors, however, that amount to sexual harassment in the workplace. There are two basic types: “quid pro quo” harassment and “hostile work environment.” "Quid pro quo" basically means an exchange of something for something else. This kind of harassment involves sexual advances or requests for sexual favors as a condition of some employment benefit. There need not be a direct sexual advance or request for sexual favors to create a hostile work environment. If one ore more people are engaged in pervasive verbal or physical conduct of a sexual nature, this could create a hostile work environment. This behavior must be bad enough to create an “intimidating, hostile, humiliating or sexually offensive work environment.” It also must be severe enough to interfere with your ability to do your job. Both kinds of sexual harassment are described in more detail below, and both are unlawful under federal and Massachusetts law. Read more about bringing a discrimination or harassment claim, and see some example harassment cases we have resolved. Quid Pro Quo Harassment |
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A classic example of this kind of harassment is when an employee is propositioned by a supervisor. It also arises when someone feels pressured to engage in any kind of intimate contact or sexual relationship as a condition of their job.
There are many variations, however. Sometimes there is not an explicit advance. Instead, a supervisor or manager may make suggestive comments or attempt to become more friendly with you than you would like. Often there is not a clear statement that the relationship is a requirement of your job. It may look like negative comments in a review after you decline. You may experience a manager re-assigning you to a less favorable role, or cutting off important opportunities, after you have ignored or rebuffed advances.
Even if nobody directly states that your employment depends on complying with an inappropriate request, you should trust your instincts. If you believe that you will face an adverse employment action if you refuse to engage, you should report the situation to someone.
There are many variations, however. Sometimes there is not an explicit advance. Instead, a supervisor or manager may make suggestive comments or attempt to become more friendly with you than you would like. Often there is not a clear statement that the relationship is a requirement of your job. It may look like negative comments in a review after you decline. You may experience a manager re-assigning you to a less favorable role, or cutting off important opportunities, after you have ignored or rebuffed advances.
Even if nobody directly states that your employment depends on complying with an inappropriate request, you should trust your instincts. If you believe that you will face an adverse employment action if you refuse to engage, you should report the situation to someone.
Sexual Harassment and Hostile Work Environment
"Hostile work environment" is often confused with workplace bullying. Most people understand what hostility means, and there can be plenty of it in many workplaces. But unless it is in some way sexual in nature, it will not form the basis for a sexual harassment claim.
A legal claim for a “hostile work environment” requires two basic things. First, the behavior is sexual in nature. Second, it has to be pervasive. There is no easy, bright-line test for either of these elements- a lot depends on the specific facts of your situation, but here are some basic guidelines:
Behavior that is sexual in nature is not the same as being sexist. Being treated differently because you are female may be sexist, but not sexual. Some examples of behaviors that may be the basis for a harassment claim:
"Pervasive" means that the behavior must be so severe and/or repeated that it affects your ability to do your job. One co-worker flashing a graphic picture on his cell phone so you can see it is inappropriate, but may not be pervasive. If that behavior is repeated over time it could be considered harassment. Or if it is ignored by management after you report it, or if others in the workplace join in.
The behavior must interfere with your work, but you don't have to admit failure in your work to report harassment. It may be enough if you are experiencing anxiety that affects your concentration. It may be enough if you have to go to great lengths to avoid the person or people who are harassing you. You may also experience physical symptoms that make it a challenge to go to work every day. All of these things are relevant to proving that the conduct is pervasive enough to be considered a hostile work environment.
If the behavior is bad enough, it may amount to a constructive discharge even if your employer does not actually fire you.
A legal claim for a “hostile work environment” requires two basic things. First, the behavior is sexual in nature. Second, it has to be pervasive. There is no easy, bright-line test for either of these elements- a lot depends on the specific facts of your situation, but here are some basic guidelines:
Behavior that is sexual in nature is not the same as being sexist. Being treated differently because you are female may be sexist, but not sexual. Some examples of behaviors that may be the basis for a harassment claim:
- A work environment in which men continually talk about their sexual activities, display pictures of nude women, or repeatedly inquire about their female colleagues’ sex lives is pretty clearly sexual in nature.
- Questions about your sex life or dating activities could be the basis for a claim.
- Unwanted sexual suggestions or advances, even if they are not tied to some employment benefit, are sexual in nature.
- Undue attention to a female co-worker's clothing or appearance can also be sexual in nature.
- Unwanted touching that is not obviously sexual can also constitute sexual harassment.
"Pervasive" means that the behavior must be so severe and/or repeated that it affects your ability to do your job. One co-worker flashing a graphic picture on his cell phone so you can see it is inappropriate, but may not be pervasive. If that behavior is repeated over time it could be considered harassment. Or if it is ignored by management after you report it, or if others in the workplace join in.
The behavior must interfere with your work, but you don't have to admit failure in your work to report harassment. It may be enough if you are experiencing anxiety that affects your concentration. It may be enough if you have to go to great lengths to avoid the person or people who are harassing you. You may also experience physical symptoms that make it a challenge to go to work every day. All of these things are relevant to proving that the conduct is pervasive enough to be considered a hostile work environment.
If the behavior is bad enough, it may amount to a constructive discharge even if your employer does not actually fire you.
Is Your Employer Covered By The Sexual Harassment Laws?
The federal law against sexual harassment is Title VII of the Civil Rights Act of 1964, which applies to private employers, state and local governments, and educational institutions employing 15 or more people. There are similar protections under Massachusetts anti-discrimination law for employers with six or more employees, but also a separate state law that protects you regardless of the size of the business..
If you work for the federal government, you are covered by both state and federal harassment laws. You also have special administrative procedures you must follow inside your agency before you can bring a claim to court.
With very few exceptions, if you are experiencing sexual harassment in the workplace, you will have a remedy under either federal or state law.
If you work for the federal government, you are covered by both state and federal harassment laws. You also have special administrative procedures you must follow inside your agency before you can bring a claim to court.
With very few exceptions, if you are experiencing sexual harassment in the workplace, you will have a remedy under either federal or state law.
How We Can Help
If you feel that you are the target of sexual behavior, misconduct or harassment, we can help. We will help you assess the situation, understand your rights and obligations, and make a plan to solve the problem. You can use the button below to schedule a call back from a member of our team, or give us a call at 781-784-2322.
