Understanding the Different Forms of Unlawful Sexual Harassment

Sexual harassment remains a pervasive issue in workplaces around the globe, undermining the safety, dignity and career progression of countless individuals. Understanding the legal definition of sexual harassment is crucial for employees and employers alike, as it sets the boundaries of acceptable behavior and provides a framework for addressing transgressions.

In the United States, while cultural and social understandings of sexual harassment continue to evolve, the legal perspective shapes policies and protections within professional environments. This post aims to demystify the legal nuances of sexual harassment, providing clarity on its various forms and the recourse available to victims.

Sexual harassment can create an intimidating, hostile or offensive work environment.¹ Fundamentally, sexual harassment includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when such behavior explicitly or implicitly affects an individual’s employment. An individual’s work performance may be impacted, or the harassment may create an intimidating, hostile or offensive work environment.

In the U.S., the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing laws against workplace discrimination, underscores that both victim and harasser can be either a woman or a man, and the victim does not have to be of the opposite sex.² Moreover, the harasser can be a supervisor, a co-worker or even someone who is not an employee, such as a client or customer.

Sexual harassment is recognized as a form of sex discrimination under Title VII of the Civil Rights Act of 1964.² This pivotal piece of legislation applies to employers with 15 or more employees, including federal, state and local governments as well as private and public colleges and universities.³

Sexual harassment in the workplace can manifest in various forms, each with its specific scenarios and challenges. Understanding these forms is essential to recognizing when legal lines are crossed.

Latin for “this for that,” quid pro quo harassment occurs when job benefits such as promotions, raises, or even continued employment are contingent upon the employee submitting to sexual advances or favors.⁴ Typically, the person responsible for such propositions is in a position of power or authority over the victim. For example, a supervisor might imply or explicitly state that an employee’s refusal to enter into a sexual relationship could result in demotion or dismissal.

This form of harassment is more pervasive and insidious. It occurs when an employee faces conduct that is so frequent or severe that it creates a work environment that a reasonable person would consider intimidating, hostile or abusive.⁵ It does not necessarily involve economic harm but may include:

• Unwelcome comments, jokes or gestures of a sexual nature
• Displaying sexually explicit materials in the workplace
• Unwanted physical contact or leering

What distinguishes this type of harassment is the enduring impact it has on the victim’s ability to perform their duties and feel safe and respected in their work environment.

While quid pro quo and the creation of a hostile work environment are the primary categories recognized legally, it’s important to acknowledge that sexual harassment can also take other forms, such as:

• Cyber harassment, which includes sending offensive or sexually explicit emails or messages
• Invasion of privacy, like unwarranted intrusions into an individual’s personal life or unwelcome comments about an individual’s appearance
• Consistently excluding or isolating someone from professional opportunities or discussions due to their gender

Understanding these subtle yet damaging forms of sexual harassment is imperative for creating a workplace that is truly inclusive and respectful of all employees.

Responding to incidents of sexual harassment begins with reporting the behavior to the appropriate authorities within an organization. Knowing and following established reporting procedures is vital for both employees and employers in addressing these serious matters.

• Document the incident: Employees should keep a record of the date, time, location and details of the incident, including any witnesses or evidence
• Report to management or HR: Most organizations have a process in place for lodging a complaint, typically beginning with notifying a supervisor, human resources representative or a designated compliance officer
• Understand your rights: Employees should familiarize themselves with their company’s policies on sexual harassment, their rights under federal and state law and the procedure for filing a complaint with the EEOC if necessary
• Seek support: Victims of harassment may benefit from seeking the support of trusted colleagues, mental health professionals or advocacy groups as they navigate the reporting process

Employers have a legal and ethical obligation to establish clear and accessible procedures for handling reports of sexual harassment.⁶ It is imperative for organizations to:⁷

• Provide training: Ensure that all employees are educated on what constitutes sexual harassment and are informed of the company’s policies and reporting mechanisms
• Maintain confidentiality: Protect the privacy of all parties involved during the investigation process, to the extent possible
• Conduct prompt inquiry: Upon receiving a complaint, employers must act swiftly to investigate the allegations and determine the appropriate course of action
• Take appropriate action: If an investigation confirms that harassment has occurred, employers must take immediate and appropriate corrective action to prevent any further incidents
• Prevent retaliation: All employees must be clear that retaliation against individuals who file complaints or participate in investigations is strictly prohibited and will be met with disciplinary measures

Organizations that proactively create a culture of zero tolerance for sexual harassment not only protect themselves from legal ramifications but also contribute to a healthier, more productive workplace environment.

Retaliation occurs when an employer takes adverse action against an employee for engaging in legally protected activity, such as filing a complaint of sexual harassment or participating in a workplace investigation.⁸ Retaliation can include demotions, pay cuts, job or shift reassignments or even termination. It is illegal under federal law for employers to retaliate against employees who assert their rights to a fair and respectful workplace.

Legal protections against retaliation are intended to ensure that employees feel safe coming forward with complaints without fear of losing their livelihoods. The EEOC stipulates that employees are protected from retaliation regardless of whether the initial complaint is found to be valid, as long as the complaint was made in good faith.⁸

Recognizing acts of retaliation can be complex, as they may not always be overt. However, if an employee notices less favorable treatment following a complaint, it may be a sign of retaliatory behavior.

Victims of sexual harassment have several legal avenues available to seek justice and remedy the harm they have experienced.

Under federal law, victims can file a charge with the EEOC within 180 days of the discrimination taking place.¹ This timeframe may be extended if a state or local anti-discrimination law also covers the harassment. Furthermore, many states have their own laws and agencies that offer additional protections and may have different deadlines for filing claims. In fiscal year 2022, there were 6,201 receipts of sexual harassment allegations received by the EEOC.⁹

You have several legal avenues to take if you’ve been a victim of sexual harassment at work, including:¹⁰

1. Filing a complaint with the EEOC: As a first formal step, victims can file a charge with the EEOC, which will conduct an investigation and may take legal action if they find evidence of harassment
2. Lawsuits: If the EEOC does not resolve the complaint, it will provide a “Notice of Right to Sue,” allowing the victim to initiate a private civil lawsuit against the employer
3. Seeking compensatory and punitive damages: Victims may be entitled to compensation for any financial losses, emotional distress and other damages resulting from the harassment. In cases of particularly egregious behavior, punitive damages may also be awarded to deter future misconduct
4. Remedies within the workplace: Aside from monetary compensation, legal actions can compel changes within an organization, such as the implementation of new policies, training programs and the reassessment of current practices to prevent future instances of harassment

Victims do not have to navigate the legal system alone. Legal professionals who specialize in employment law, advocacy groups and other support services can provide guidance and representation throughout the process.

Seeking legal remedies not only has the potential to provide compensation and justice for the individual victim but also serves a broader societal function by reinforcing the serious consequences of violating anti-discrimination laws.

Understanding the different forms of unlawful sexual harassment in the workplace is essential for HR professionals, business owners and people managers. Gaining a better understanding of the law is a great way to better support employees in navigating these challenging situations. See how Tulane Law’s online Master of Jurisprudence in Labor & Employment Law (MJ-LEL) program can help you grow your knowledge of sexual harassment laws and other important employment laws.

Through the robust MJ-LEL curriculum, you will build a solid foundation in law and address modern legal challenges in the workplace. In the courses Introduction to Employment Discrimination Law Principles and Strategies and Contemporary Sex and Gender Issues in the Workplace, you will delve deep into the topic of sexual harassment in the workplace, as well as other key issues you need to understand to effectively advocate for your employees.

Schedule a call with our admissions team today to learn more about what this program can do for your career.