10. What is “sexual harassment” and “hostile work environment”?
Two types of intentional discriminatory conduct based upon the actions or inactions of the employer (or its agents) are “sexual harassment” and “hostile work environment”.
⁃ Note: These types of conduct is that they are not subject to a bona fide occupational qualification.
• 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.
• 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 victim’s 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 Bob’s conduct, but the manager does nothing. If the conduct becomes severe or pervasive to the point it interrupts Ann’s ability to do her job, it could constitute a hostile work environment.
• Discussion: How do you feel about the protections afforded employees against sexual harassment? What about hostile work environment? Do you agree with the defenses available to the employer? Why or why not? In a hostile work environment action, what type of conduct should be considered severe and pervasive?
• Practice Questions: Jean is a new employee at ABC Corp. She is very offended when she sees a calendar depicting images of naked women on a calendar in a colleague’s office. She raises the complaint to her manager, Bob. Bob explains that the calendar was a gag gift and is only displayed as a joke. Jean is not satisfied with the explanation and quits her job. She later files a complaint against ABC Corp under Title VII for sex-based discrimination. What will she have to demonstrate to prevail in the action?