Sexual Harassment in the Workplace
Sexual harassment in the workplace is one of the most complicated areas of employment law. It is also one of the areas that has recently received the most press.
Below is a basic guide to sexual harassment in the workplace. Please note that sexual harassment in the workplace often goes hand-in-hand with other illegal acts, like gender discrimination. If you have a problem with sexual harassment in the workplace, you should think about what else might be going on as well.The Guide Below is for California & Federal Law.
The principles described here apply to both. However, there are some differences that could make a difference to individual cases. It should also be noted that the damages for sexual harassment in the workplace cases differ greatly between California and Federal law. See the damages section for a more detailed explanation.Two Types of Sexual Harassment in the Workplace
There are two types of sexual harassment in the workplace, "quid-pro-quo" and "hostile environment."
The Hostile Environment will be explained in a separate section, although where there's one, there's often the other.Quid-Pro-Quo Harassment
"Quid-pro-quo" is Latin for "this for that." It is a trade. When the trade is on the basis of sex, it is illegal.
This is the when the employer makes sex a prerequisite to getting something in the workplace. For example: "sleep with me and you'll get the job." That's illegal. This type of sexual harassment in the workplace is the "casting couch" cliché.
Quid-pro-quo can also include negatives. For example, "sleep with me or you're fired" is also illegal.Who Can Sue?
Obviously, the woman who is fired because she wouldn't sleep with the boss can sue. But so can a woman who the boss didn't even want to sleep with.
Take for example a situation where the boss asks one of his assistants to sleep with him in exchange for a promotion. She does it and gets the promotion. Under the law, she has a claim, because her agreeing to his sexual demands was a condition of the promotion. She also has a claim if she refused and didn't get the promotion.
Now, if she was just having an affair with him because she wanted to, there is no claim.
What about the other assistants? Do they have a case because the other assistant got a promotion because she was sleeping with the boss, and they did not? Probably not. In California and in most states, there is no sexual harassment in the workplace or discrimination in the workplace claim because a lover got special treatment. However, if the boss made sexual demands which they refused, and that's why they didn't get the promotion or other benefits, they have a claim.Consent & Offensive Conduct
What about the person who accepts the offer of advancement in exchange for sex. Can she sue? She can certainly sue - she either deserved the promotion or didn't deserve it; she shouldn't have been put in the position of considering whether or not to sell her body to get it. The problem is the idea of "consent."
Sexual harassment in the workplace must be unwelcome. If she was happy with the trade-off, she has a difficult case.
First, the conduct must be "offensive." If two employees have a good time exchanging sexual jokes, it would not be sexual harassment in the workplace.
If one employee kept telling another employee sexual jokes that the second employee found offensive, it would be sexual harassment in the workplace. If two employees dated and engaged in consensual sex, this would not be sexual harassment. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the work place to further the relationship, this would be sexual harassment in the workplace.
Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment in the workplace. Sexual harassment in the workplace can be between people of the same sex. Sexual harassment in the workplace can be a woman harassing a man.Who Can Sue?
Anyone who is offended by a sexually harassing environment may theoretically sue. However, that employee's offense must be reasonable. An extremely sensitive person might not be able to maintain a claim, because her feelings of having been offended were not reasonable.
The reasonableness is evaluated by a standard that is the same as a person in the victim's circumstances. For example, what a reasonable woman might think is a hostile environment is not necessarily the same as what a man might think is a hostile environment. If it's a woman who was harassed, it's the woman's point of view that counts.Damages in Sexual Harassment in the Workplace Cases
Victims of sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys fees.Further Information
- For Legal Help see Finding an Attorney and David H. Greenberg, California Employment Law Attorney.
- See related sections: Damages & Hostile Workplace Environment.