Sexual harassment and hostile work environment are two types of intentional discriminatory conduct based upon the actions or inactions of the employer (or its agents) are.

Note: These types of conduct is that they are not subject to a bona fide occupational qualification.

What is sexual harassment?

Sexual harassment involves conduct by an employer (or its agents) that directs unwelcome sexual advances, requests for sexual favors, or other verbal or physical harassment that is sexual in nature toward an employee. Sexual harassment is most commonly committed by a manager or a superior of the employee being sexually harassed. An employer will be liable for failing to make reasonable efforts to prevent such activity.

Note: Conducting employee training and instituting workplace policies prohibiting such behavior will not necessarily protect the employer.

Example: An example of sexual harassment is when a manager or supervisor offers favorable action (such as promotion, raise in pay, time off, etc.) in exchange for sexual favors from the employee. This type of conduct is commonly known as quid pro quo. Another situation constituting sexual harassment would be threatening or insinuating unfavorable action against an employee for failure to take part in sexual relations. The key element is that the employee feels compelled to undertake sexual activity with the superior.

What is hostile work environment?

 Hostile work environment is a form of sex-based discrimination resulting from sexually explicit or harassing communications or actions by employees that is offensive to other employees. To be actionable under Title VII, the conduct must be so severe or pervasive as to alter the conditions of the victims employment and thereby create an abusive work environment. 

The employer will be liable if she commits, promotes, or fails to take actions to prevent such behavior. As such, the employer will only be liable if it is aware of alleged conduct and fails to take prompt and reasonable steps to correct it. The employee must inform the employer of the conduct or the employer must otherwise be aware of the conduct. 

The employee cannot unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer, unless she reasonably believes that reporting the conduct would cause negative consequences. In such a situation, the employer can be liable for failing to provide a reasonable means of reporting the conduct without the employee suffering retribution. 

An employer charged with creating or failing to respond to a hostile work environment may defend itself by showing that it did not know (and it was not reasonable to expect them to know) of the problem. Further, an employer can protect itself by exercising reasonable care to prevent and correct promptly any sexually harassing behavior.

Note: Sexually offensive comments might include allowing (or failing to eliminate) sexually-oriented language, images, expressions, etc., in the workplace.

Example: Each morning when Ann arrives to the office, Bob whistles at her and tells her that she looks good. Ann originally thought Bob was just being nice, but she has grown increasingly uncomfortable with his comments and actions. She informs her manager of Bobs conduct, but the manager does nothing. If the conduct becomes severe or pervasive to the point it interrupts Anns ability to do her job, it could constitute a hostile work environment.

Related Topics

• Employment Discrimination (Intro)
• What is Employment Discrimination?
• Glass Ceiling
• What are the major Employment Discrimination laws?
• Civil Rights Act of 1866 (1981 Actions)
• Age Discrimination in Employment Act (ADEA)
• Americans with Disabilities Act (ADA)
• The Rehabilitation Act
• Job Accommodation Network
• Genetic Information Non-Discrimination Act (GINA)
• Health Insurance Portability and Accountability Act (HIPAA)
• Affordable Care Act (ACA)
• Uniform Service Employment and Reemployment Rights Act (USERRA)
• Sexual Orientation and Identification
• What is Affirmative Action?
• What is employment discrimination protection under state law?
• Overview of Title VII (Civil Rights Act of 1964)
• Civil Rights Act of 1964
• What is employment discrimination under Title VII?
• How are Title VII protections enforced?
• Wrongful Termination Claim
• Disparate Treatment
• Disparate Impact
• What is race discrimination under Title VII?
• What is national origin discrimination under Title VII?
• What is religious discrimination Under Title VII?
• What is sex discrimination under Title VII?
• What is sexual harassment or Hostile work environment under Title VII?
• Quid Pro Quo
• What is pregnancy discrimination under Title VII?
• Equal Pay Act of 1963