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Sexual Harassment

In June, 1998, the United States Supreme Court issued two opinions addressing an employer’s liability for sexual harassment in the workplace—Faragher v. City of Boca Raton, Fla., 118 S. Ct. 2275 (1998), and Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).  Although the Court’s opinion in these two cases left a number of issues to be resolved by the lower courts, the Court’s decisions in both Faragher and Burlington Industries unequivocally demonstrate the importance to an employer of developing an effective and fair sexual harassment policy, communicating that policy to company employees, and taking prompt corrective action when sexual harassment is found to have occurred.

Definition of Sexual Harassment

Regulations promulgated by the Equal Employment Opportunity Commission (“EEOC”) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment; (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or (3) such conduct has the purpose or effect or unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

There are two specific forms of unlawful sexual harassment, including (1) quid pro quo harassment, and (2) hostile working environment harassment, both of which are described below.  Although the line between these forms of harassment has been blurred by recent Supreme Court decisions, they continue to be important elements of any sexual harassment analysis.

Quid Pro Quo Sexual Harassment

Quid pro quo harassment occurs when an individual’s submission to or rejection of sexual advances or conduct of a sexual nature is used as the basis for employment decisions affecting the individual or the individual’s submission to such conduct is made a term or condition of employment.  Such behavior must be engaged in by an individual with the power to effect the employment action or decision affecting the employee. Actionable sexual harassment can arise out of consensual sexual relationship between a supervisor and a subordinate employee, generally in situations in which the consensual relationship ends and adverse employment consequences befall the subordinate.

Hostile Environment Sexual Harassment

“Hostile work environment” sexual harassment exists when unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of sexual nature has the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.  29 C.F.R. § 1604.11 (a)(3).

  In order to establish a hostile environment sexual harassment claim, an employee must show the following:

•  the harassment was unwelcome
•  the harassment was based on gender
•  the harassment was sufficiently severe or pervasive to create an abusive working environment
•  the employer had constructive or actual knowledge of the harassment
•  the employer took no prompt and remedial action

To determine whether an environment is hostile or abusive, a court will look at all the circumstances, which may include the following:

•  the frequency of the discriminatory conduct
•  the severity of the discriminatory conduct
•  whether the discriminatory conduct is physically threatening or humiliating or a mere offensive utterance
•  whether the discriminatory conduct unreasonably interferes with an employee’s work performance

An employee is not required to show that he or she suffered psychological injury as a result of the hostile or abusive work environment.  The Supreme Court uses the “reasonable person” standard—reasonable person must find the environment hostile or abusive, and the victim must subjectively perceive the environment to be abusive.

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