Do I Have A Sexual Harassment Case?

Some employees feel that they are "harassed" on a daily basis at their job; most people have heard the term "hostile environment", and may believe that a hostile environment exists whenever their employer is hostile, unfair, or belligerent. "Harassment" and "hostile environment" have different meanings in a court of law than they might have in everyday language, and require something more than just an unpleasant atmosphere or poor treatment, even if that mistreatment is based on sex, race or other protected categories.

In a legal sense, a claim for harassment is a type of discrimination - there can be harassment based upon sex or gender, religion, age, race or national origin. Other types of discrimination may involve a hiring, firing, promotion/demotion, or pay decision which is based on a bias against people of a certain race or gender, for example. A harassment claim does not necessarily include those kinds of important actions involving employees, but instead relates to the day-to-day conditions and atmosphere in the workplace. A sexual harassment claim doesn't require that an employee be fired or demoted, but it does require that the situation in the workplace be so poor that most employees would find that their work performance suffers as a result.

There are many kinds of conduct which can result in a sexual harassment claim - sexual comments or innuendo, comments about physical appearance or clothes, jokes, display of pornography, physical contact, and requests for sexual favors are just a few examples. The fact that you may have experienced this kind of conduct doesn't mean you have a sexual harassment claim, however. The legal standard for a sexual harassment claim is that this kind of conduct has to be severe or pervasive.

What does that mean? It means this kind of thing happens on a regular and frequent basis over an extended period of time or the conduct is extremely offensive, threatening or outrageous. Sexual comments alone occurring every day or two over a period of several months might qualify as pervasive, or a single physical assault might be considered severe, depending on the circumstances.

In one case, the U.S. Supreme Court explained it this way:

We can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.

As the above quotation suggests, in order to have a valid sexual harassment claim, the court must find that any reasonable employee would have been offended and upset to the extent that the harassment interfered with his or her work; the court must also find that the particular person bringing the claim was impacted in this way. In other words, a very sensitive person might suffer serious psychological damage because of this kind of behavior in the workplace, but she won't have a claim unless the court finds the conduct is severe or pervasive, so that her reaction was reasonable. At the other extreme you might find a female employee who has worked most of her career in male-dominated jobs (for example, a construction worker) where crude jokes, comments and even physical horseplay are common - if the behavior really doesn't bother her much, she can't prove sexual harassment, because the behavior didn't interfere with her work at all. If there is sexual behavior at your job which offends you, but you really enjoy your work in spite of it all, it would be difficult to prove sexual harassment.

One issue which comes up frequently in sexual harassment cases involves the employer's sexual harassment policy. Most businesses these days with more than a few employees have a sexual harassment policy in their employee handbook (if they don't, they should have). No matter how terrible the environment in the workplace, an employer can often prevent any sexual harassment claim by showing there was a policy available which allowed the employee to make a complaint, but the employee never did. There are some exceptions to this rule, but employees who believe harassment may be at issue should consider whether to make a complaint to the employer (and how the policy requires the complaint to be made).