Under federal law and rules, workplace sexual harassment requires four factors:
- An employee is subject to verbal or physical conduct (that is, words or actions). The person engaging in the conduct can be a co-worker or someone who ranks above the employee in the company hierarchy, or a client or customer. The harasser can be a man or woman, the employee can be a man or woman, and the two can be of the same sex or opposite sex. However, the victim needs to be able to identify something that was done to them;
- The conduct (whether verbal or physical) is sexual or of a sexual nature. Such conduct may include, among other things, sexual advances, requests for a sexual relationship, inappropriate touching, sexual comments regarding the employee’s body or clothes, telling jokes of a sexual nature, sending emails with sexual content, or displaying material (such as magazines, cartoons, photos or websites) with sexual content. It also may be directed at the person specifically because of their sex (for example, grimaces directed at women that are not directed at men);
- The conduct is unwelcome. That is, the employee is not in a consensual sexual or romantic relationship with the other person at the time of the conduct, and does not welcome or invite the harasser’s actions or words;
And
- The employee is affected in one of two ways:
- The employee’s employment, or terms of employment, depend on whether or not the employee submits to the harassment. For example, the employee is fired, demoted, denied a salary increase or otherwise suffers from an adverse employment action because the employee rejected the sexual advances.
or,
- The unwelcome conduct is so severe or pervasive (that is, the conduct is serious and occurs frequently enough) that it has the purpose or effect of creating a hostile, intimidating or offensive work environment, or unreasonably interferes with the employee’s work performance.
- The employee’s employment, or terms of employment, depend on whether or not the employee submits to the harassment. For example, the employee is fired, demoted, denied a salary increase or otherwise suffers from an adverse employment action because the employee rejected the sexual advances.
Any workplace policy, and any response by an employer to a claim of sexual harassment, should take into account federal laws and rules as well as the laws and rules of any applicable state or city.
