What is Sexual Harassment?
As most women who were in the workforce over the decades will tell you, sexual harassment was a thing long before it was recognized under federal and state employment laws as a form of unlawful discrimination. There are two basic types: “quid pro quo” harassment and “hostile work environment.” Quid pro quo harassment involves sexual advances either implicitly or explicitly in exchange for employment or as a basis for employment decisions. A hostile work environment is one where an employee is subject to conduct of a sexual nature which interferes with an employee’s work performance by creating an “intimidating, hostile, humiliating or sexually offensive work environment.” Both kinds of sexual harassment are described in more detail below, and both are unlawful under federal and Massachusetts law.
Quid Pro Quo Sexual Harassment
If you are propositioned by your supervisor, or feel pressured to engage in any kind of intimate contact or sexual relationship as a condition of your job, you can be pretty clear that there is quid pro quo sexual harassment involved. It can be more subtle than that, however. If you are a situation where you feel uncomfortable because a supervisor or manager or someone else senior to you in your job is making suggestive comments, attempting to become more friendly with you than you would like, and/or taking adverse action or otherwise negatively affecting your opportunities at work, you should report it to human resources and consider speaking with an employment lawyer to understand whether that conduct constitutes sexual harassment.
Sexual Harassment and a Hostile Work Environment
This concept is the source of widespread misunderstanding on the part of both employees and employers. Many believe that workplace bullying and a “hostile work environment” are always unlawful. Not necessarily. This does not mean it is a good idea for an employer to allow this kind of behavior in the workplace, but it is only legally actionable in certain circumstances.
A “hostile work environment” in the context of sexual harassment requires two basic elements: first, the behavior is sexual in nature, and second, that it is 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 asked to fetch coffee for a group of male peers, or being consistently mistaken for a different, more traditionally female role may be sexist, but is not sexual. In contrast, 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. Unwanted sexual suggestions or advances, even if they do not rise to the level of “quid pro quo” harassment, are also sexual harassment. Unwanted touching that is not obviously sexual can constitute sexual harassment, particularly if the behavior continues after the woman has indicated that it makes her uncomfortable.
"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 unless the behavior is repeated and/or condoned, it may or may not rise to the level of actionable harassment in the eyes of the law. This is perhaps even more subjective and harder to predict than whether the behavior is sexual in nature.
Is Workplace Bullying the Same as Harassment?
“Workplace bullying” is another term we hear a lot from employees calling to seek legal advice. It certainly happens, and is certainly intensely problematic for the individual who feels targeted by such behavior, but it is not- at least not in Massachusetts and at least not at the present- against the law unless it meets the definition of sexual harassment described above. If the bullying is targeted at an employee because of some characteristic protected by the anti-discrimination laws (i.e., race, ethnicity, disability, sexual orientation, gender identity, etc.) it may be evidence of actionable discrimination, but if a group of employees are generally hostile to another employee without any discriminatory intent, no matter how bad the behavior or how actually hostile the work environment is, it is probably not unlawful. If you are unsure about your situation, you should report it to human resources if your company has an HR department.
What are Your Rights if You Think You are the Victim of Sexual Harassment?
First, if you believe you are the victim of sexual harassment, you are not alone, and there are resources you can access to help you understand what is happening to you.
Second, if you believe you are the victim of sexual harassment, you have the right to report it within the company without fear of retaliation. If you make a good faith report of discrimination or harassment, you are protected from retaliation even if your employer investigates and decides it does not believe harassment occurred. Retaliatory actions are not limited to termination, but can include reduction in hours, an undesirable transfer, demotion, or other adverse employment action.
If an employer allows discriminatory harassment in the workplace that effectively makes it untenable for a targeted employee to remain on the job, that employee may resign and still bring the equivalent of a wrongful termination suit, under the theory known as “constructive discharge.” Proving that the behavior is so severe as to amount to a constructive discharge can be a challenge, which is another reason to start with reporting the harassment within the company to see if it can be stopped.
If You Are an Employer, What Can and Should You Do to Prevent and Respond to Sexual Harassment?
Massachusetts law requires all employers to promote a workplace free of sexual harassment, and to have policies in place that includes a statement that sexual harassment and retaliation for reporting harassment are unlawful, provides a description and examples of what constitutes actionable harassment, a statement of the consequences that could occur for violation of the policy, and a system for reporting and investigating harassment complaints.
If you do not have this policy, that does not necessarily mean you are liable if there is a sexual harassment complaint, but it does mean that if one of your employees does prove harassment, and a court finds that you did not follow your policy or did not have a system in place to address such complaints, you could be subject to punitive damages in addition to whatever is awarded to the employee for lost wages and/or emotional distress.
It is also a good idea to provide periodic training and resource materials about sexual harassment. This information is important to managers so that they understand what is and is not sexual harassment, and how to respond appropriately to complaints, and important to all of your employees so that they know what they should be reporting. Do not be afraid of reports- you are in a better position to ensure that you have an appropriate workplace environment and climate if inappropriate behavior is in fact being reported to the right people within your company or organization.
How slnlaw Can Help
If you feel that you are the target of sexual behavior, misconduct or harassment, or if you are an employer unsure how to handle an employee complaint, we can 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, give us a call at 781-784-2322, or fill out our web form to let us know a little more about your situation.
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