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There are two forms of sexual harassment, (1) Quid pro quo and (2) hostile work environment. Keep in mind that sexual harassment is a form of discrimination and that harassment based on "sex" is interchangeable with all illegal forms of harassment, i.e. race, age, religion, natural origin, etc. These claims fall under Federal Code, Title VII, as well as individual state laws. (In New Jersey, refer to NJLAD (New Jersey Laws against Discrimination) laws).
"Quid pro quo" in Latin simply means, "this for that", an equal exchange. Quid pro quo sexual harassment occurs when an employer attempts to make an employee's submission to sexual demands a condition of his or her employment. It involves an implicit or explicit threat that if the employee does not accede to the sexual demands, he or she will lose his or her job or suffer other adverse employment consequences.
The EEOC (Equal Employment Opportunity Center) defines sexual harassment as:
"Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."
Sexual advances do not have to be overt, but can be subtle in nature, i.e. repeated requests for dates that have been sternly rejected, assignments that involve working with a supervisor who repeatedly makes unwanted advances, repeated touching, etc.
The Supreme Court defines a hostile work environment as when an employer or fellow employee(s) harasses another employee because of his or her sex rendering the working environment hostile, intimidating or offensive. Often, the harassing conduct takes the form of unwelcome sexual touchings and comments. However, the harassing conduct need not be sexual in nature; rather, the defining characteristic is that the harassment occurs because of the victim's sex.
The Courts have determined that there are four "prongs" (equivalent of "elements" in criminal law) that must be met to establish a claim for hostile work environment sexual harassment.
The complained of conduct:
(1) would not have occurred but for the employee's gender; and it was
(2) severe or pervasive enough to make a
(3) reasonable woman believe that
(4) the conditions of employment are altered and the working environment is hostile or abusive.
Element (1) can be proven be merely showing that the conduct would not have occurred but for the complainants sex. The conduct does not have to be sexual in nature, but can be sexist instead. (An example of this would be denying a promotion/assignment based on the sex of the applicant.)
Element (2) is more difficult to prove. Typically, the Courts have held that a single incident of harassment would not normally give rise to substantiate a complaint. More frequently, a complainant recites a series of events, that when taken individually may be harmless, but when viewed together show a pattern of abuse. This is why it is very important for women in this position to thoroughly document events with dates and times.
Element (3) is an objective assessment of the working conditions and environment through the eyes of a "reasonable woman". It does not give consideration to how the conduct affected the complainant because it takes into consideration that the complainant may be overly sensitive. Therefore, the Court considers how the employer treats all females in its employ and will accept incidents of harassment towards other female employees as evidence to meet and satisfy this prong. It will also accept all incidents of differential treatment towards all minorities employed with the same employer.
The Courts have noted that just because a fellow employee does not complain of illegal activity, their lack of complaint does not make the activity legal, nor does it create an environment where fellow employees must accept the same illegal treatment. Just as the Court takes into consideration that one employee may be overly sensitive, it also recognizes that another employee may be more resilient.
Element (4) must show that the complainant's work environment has been altered to create a hostile work environment. This can be achieved by examining the employee's work environment prior to the onset of the illegal activity as compared to after. It should be noted that the condition of the complainant's work environment only need be affected and that monetary income need not be a consideration. Examples can include, shift changes, changes in assignments, receiving less favorable assignments, being repeatedly disciplined for infractions that others are not disciplined, being denied time off, schools, etc.
Along with the responsibility of identifying harassment, the employee has the responsibility to report it to the employer. Every agency, by law, should have a method in place for an employer to report acts of sexual harassment. If your agency does not have a procedure in place, simply write a letter and present it to your supervisor. (If you are complaining about your supervisor, report it to their supervisor). If your employer does not take actions to correct the situation, you will need to contact the EEOC and seek the assistance of an employee.
Visit the Case Law Library to read Sexual Harassment Case Law.
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