Sexual harassment in the workplace: trends and legal definitions

Business Law

Sexual Harassment

Sexual harassment is one of the most common business law topics in the workplace and one of the most publicized. Today, nearly everyone who enters the workforce to work for a larger organization will receive some kind of sexual harassment and sensitivity training. The number of sexual harassment claims has skyrocket since 1991 and formal training programs and grievance policies began entering the workforce. However, one interesting trend has also emerged lately. The number of sexual harassment claims dropped significantly after the Great Recession emerged in 2008. There are other recent trends that are also interesting. For example, the number of men filing claims has reached new heights as well as claims made by members of the same sex. This analysis will provide a background on sexual harassment in the workplace followed by a brief discussion of some of the newer patterns that have emerged in regards to sexual harassment claims being filed in just the last few years.

Background on Sexual Harassment

Definitions

The definition of what constitutes sexual harassment seems to vary widely by the source. However, the general theme, according to USA Today (Howard-Martin, 2002), is that for sexual harassment to be unlawful, the conduct must be unwelcomed and offensive, as perceived by the recipient of such actions. Obviously, the perspectives and perceptions of related acts are subject to a subjective interpretation which makes it difficult to pinpoint a specific definition. There are many fine lines that divide the concept of an offensive statement and one that can be considered sexual harassment. Generally, it is up to the recipient of the sexually offensive action to be the judge of what makes them feel uncomfortable or is inappropriate in a work environment.

Much of the definition hinges on the concept of "unwelcomed" behavior. According to the United Nations definition of unwelcomed, it does not necessarily mean "involuntary" and the distinction must be made. A victim may consent or agree to certain conduct and actively participate in it even though they still find it offensive and objectionable. Therefore, sexual conduct is unwelcomed whenever the person subjected to it considers it unwelcomed; regardless of whether they voluntarily participate or not. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances (United Nations, 2002). Again it is the subjective judgment of the victim that guides the ultimate definition of what is unwelcomed or objectionable. Now that there are generally channels to report such behaviors in most organizations, if the behavior reaches a point that it is disruptive to the individual, they now have many options of how to approach this situation.

Despite their being some vagueness in the definition of sexual harassment, there are certain patterns or themes that can be found in most cases. These themes that have been identified constitute the information that is provided in most training programs. These programs illustrate the types of behaviors that are generally considered to be harassment by most individuals. The common themes that have been identified in workplace environments include items such as (Lawyer Facts, 2013):

Pervasive sexually suggestive or crude jokes, gestures, comments on appearance or clothing.

Repeated unwelcome intentional touching such as scratching or patting a coworker's back, grabbing employee around the waist, or interfering with an employee's ability to move. If the conduct is severe, such as grabbing one's breasts, then one or two incidents are probably enough.

Requests to engage in sexual activity or for sexual favors.

Continued unwelcome requests for meetings outside the workplace after you have made it clear that they are not welcome.

Repeated transmitting or posting emails or pictures of a sexual or other harassment-related nature, especially after there has been an objection.

Repeated display of sexually suggestive objects, pictures, or posters.

Combination of several of the above.

Types of Sexual Harassment

There are two legally recognized forms of sexual harassment, quid pro quo and hostile environment sexual harassment (Lawyer Facts, 2013). Quid pro quo sexual harassment is the most commonly recognized form of sexual harassment and this occurs when someone in a position of power tries to trade some favorable employment benefit for sexual favors. An example of this would be a promotion or preferential treatment that was given in exchange for sexual acts or sexual favors. Even if such an idea is suggested among employees, this can constitute sexual harassment. One interesting tidbit about this form of sexual harassment is that the person does not have to be the direct victim to file a claim. For example, if a peer notices another person exhibiting this type of quid pro quo behavior towards another and finds it offensive, then they can actually report the behavior without being a direct victim; they are in fact still an indirect victim as it is often the case that watching such behaviors is offensive in its own right.

The other type of sexual harassment that is legally recognized is environmental harassment. According to one law library, hostile environment sexual harassment is defined as:

Where a person is subject to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person's employment and creates an abusive working environment.

What exactly constitutes such an environment is often dependent on the specific circumstances and is a matter of continuing and sometimes conflicting - legislative and judicial actions, determinations and clarifications (Lectic Law Library, N.d.).

Inappropriate touching is one of the most common examples of this. An employee may touch other employee repeatedly and purposely and this can constitute sexual harassment. There are also examples of verbal conduct that can fulfill this definition. Employees or employers can use sexual language that can also be disruptive.