The law defines sexual harassment as either unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or conduct based on someone’s sex that is severe or pervasive and that affects working conditions or creates a hostile work environment. At work, sexual harassment is a form of unlawful discrimination.
It is important to understand several phrases in this definition:
“Unwelcome”
To be illegal, sexual harassment must be unwanted. Therefore, it is important to communicate (verbally, in writing, and by your actions) that the conduct makes you uncomfortable and that you want it to stop. Ideally, you will communicate this directly to the harasser.
“Of a sexual nature” or “based on sex”
Many kinds of verbal, physical, nonverbal or visual conduct of a sexual nature may be sexual harassment. Here are some examples:
Verbal or written:
- Commenting about a person’s clothing, personal behavior, romantic relationships, or body;
- Making sexual or sex-based jokes or innuendos;
- Requesting sexual favors or dates;
- Spreading rumors about a person’s sexual life; and/or
- Threatening a person for rejecting sexual advances or overtures.
Physical:
- Impeding or blocking someone’s movement;
- Inappropriate touching of a person’s body or clothing;
- Kissing, hugging, patting, or stroking; and/or
- Assaulting (touching someone against her will or without her consent).
Nonverbal:
- Looking up and down or staring at a person’s body;
- Making derogatory gestures or facial expressions of a sexual nature; and/or
- Following a person around.
Visual:
- Displaying posters, drawings, pictures, screensavers or emails of a sexual nature.
(Note: Harassing conduct can also be unlawful if based on your sex or gender. It does not have to be sexually suggestive. For example, if you are a woman working as a carpenter on an otherwise all-male job, and your job performance is the same as your male co-workers, if you are the only one singled out for harsh criticism or verbal abuse, such conduct may be a form of unlawful sexual harassment.)
“Severe or Pervasive”
To be “harassment,” legally, the conduct must be either severe or pervasive. It does not have to be both.
Generally, simple teasing, isolated offhand comments, or incidents that happen only once (and are not serious) are not prohibited. A single unwanted request for a date or a single sexually suggestive comment (even one that offends you or that was inappropriate) may not be “severe” or “pervasive.” However, a single incident of a very serious nature, like rape or attempted rape, would certainly meet this part of the definition of sexual harassment. (Such conduct would also likely violate other laws or constitute criminal behavior.)
Harassment that is less severe may still meet the definition if it happens frequently or persists over time. As such, it will be found “pervasive”. A number of relatively minor separate incidents may add up to sexual harassment if the incidents negatively affect your work environment. To determine whether the harassing conduct is “pervasive,” you can ask yourself: How many times did the incidents occur? How long has the conduct been going on?
“Affects Working Conditions” or “Creates a Hostile Work Environment”:
If you are fired, refused a promotion, demoted, given a poor performance evaluation, reassigned to a less desirable position, shift, or location, or there is another concrete negative employment action taken against you because you reject a sexual advance or other conduct based on your sex, then the sexual harassment has likely “affect[ed] your working conditions.”
Even if your employer does not take some action that changes the status of your employment or directly results in you losing money, you may still have a claim for unlawful sexual harassment if the conduct unreasonably interferes with your work performance or creates an intimidating, hostile, or offensive work environment.
For example, if repeated sexual comments make you so uncomfortable at work that your performance suffers or that you decline professional opportunities because they will put you in contact with the harasser, you are working in a hostile work environment are entitled to a remedy at law.
Keep in mind that to create a “hostile work environment,” the conduct has to not only make you personally feel intimidated or offended at work but also be the type of behavior that would make a reasonable person of your sex, facing similar circumstances, feel that way.
Case Study: The Harvey Weinstein Allegations
As a worst-case scenario in sexual harassment, we can take a brief look at one of the better-reported instances in modern history.
One of the most successful film producers of all time, Harvey Weinstein, enjoyed notoriety, respect, and significant financial gain until well into his 60s. However, since 2017, more than eighty women have accused him of sexual harassment, assault, or even rape. In November 2017, a group of the alleged victims released a list of over a hundred alleged instances of sexual abuse by Weinstein dating from 1980 to 2015, include eighteen allegations of rape. According to these reports, the young actresses or models were invited by Weinstein into a hotel room or office on the pretext of discussing their career. Once alone with them, Weinstein demanded massages or sex and told them that complying would help their careers.
Former colleagues and collaborators of Weinstein told reporters that these activities were enabled by employees, associates, and agents who set up these meetings, as well as lawyers and publicists who suppressed complaints with payments and threats. Bob Weinstein, Harvey’s brother, for example, was allegedly involved in three settlements with accusers, the first in 1990.
One Miramax executive reported being harassed by Weinstein after being promoted and praised by him. She and other employees allegedly found that the HR department protected Weinstein more than they did his employees.
Today, Weinstein is released on bail, awaiting trial. He has been fired by the company that he founded, and he is, generally speaking, disgraced. His name is now synonymous with powerful men abusing their power to take sexual advantage of women (the “Weinstein effect”) and his alleged victims started a worldwide movement: “#metoo”. To avoid being either the Weinstein or one of the victims, please review the first section of this article again and be diligent in conducting yourselves according to the law.