Recently, the topic of sexual harassment has burst into the limelight following the rampant sexual harassment allegations coming out of Hollywood and the subsequent #MeToo movement. Bringing the topic of sexual harassment into the mainstream has not only had the effect of destigmatizing sexual harassment in and of itself but has also increased the general societal awareness of the pervasiveness of sexual harassment. This increased awareness has also exposed a void in the understanding of what sexual harassment actually is and how it should be addressed.
The first issue, of course, is what is sexual harassment? Sexual harassment is a type of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964. The harassment manifests itself as unwelcome verbal or physical conduct that occurs because of a person’s sex. Sexual harassment becomes legally actionable when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such a being fired or failing to get a promotion).
With this foundation of the “technical” and “legal” definition of sexual harassment, it is important to know what sexual harassment may practically look like. Indeed, it is not always the stereotypical depiction of a powerful male boss withholding a job or promotion from a female subordinate unless she performs some sexual favor for him. While that image is most definitely sexual harassment, it is important to know that other acts and statements can constitute sexual harassment and what you should do if it happens to you or in your workplace.
What conduct is considered sexual harassment?
Any unwelcome, direct or indirect, verbal or physical conduct that includes:
- Unwelcome sexual remarks or jokes, sexual advances, propositions, or requests for sexual favors
- Unwelcome and intentional physical conduct, including touching, grabbing, hugging, pinching, cornering, obstructing, gestures, or leering,
- Acts of aggression, intimidation, hostility, or unequal treatment based upon an individual’s sex, and
- Materials depicting unclothed individuals or individuals engaged in sexually explicit conduct or offensive pictures, photographs figurines or other graphic images, conduct, or communications, including, but not limited to e-mail, faxes, texts, and other documents pertaining to an individual’s protected class.
Can sexual harassment be perpetrated by someone of the same sex?
Yes. The prohibitions on sexual harassment are gender neutral—meaning both the perpetrator and the victim can be of the same sex. Sexual harassment can occur when the perpetrator is a male or female regardless of whether the victim is a male or female.
Does the harassment always have to be perpetrated by a boss or other supervisor?
No. The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee, such as a vendor for the business.
What do you do if you believe you have been sexually harassed?
The first thing you want to do is to tell the harasser to stop. This can be difficult as sometimes people do not want to speak up, do not want to cause a scene, or, in the moment, they are unsure that an instance of sexual harassment may have occurred. However, the importance of this step cannot be understated. Sometimes, in less obvious incidents of sexual harassment, the individual perpetrating the harassment may not realize that their conduct is problematic. For example, someone showing a funny meme on their cellphone or watching a music video with scantily clad actors, may not realize that that behavior could be offensive.
Next, you want to follow your employer’s reporting policy. This usually involves reporting the incident to a supervisor, human resources, or anonymous reporting system that the company may have. This step is crucial—your employer cannot address and remedy a situation that it does not know about.
Next, participate in the investigation. Provide your employer with specific dates, times, conduct, witnesses, and other relevant information that allows your employer to investigate the claim.
If you are unsatisfied with the relief provided by your employer, consider other options---such as legal relief by speaking with an attorney or the Equal Employment Opportunity Commission (“EEOC”), to the extent your employer is covered by Title VII.
What can happen after I report sexual harassment?
As referenced above, reporting sexual harassment can trigger several actions. First, your employer may investigate the allegation. This will involve speaking to the alleged harasser and any other witnesses to the alleged harassment. As with any investigation, results can vary, depending on the findings and available disciplinary action for the business. Therefore, it is important to not automatically assume that raising a complaint of sexual harassment will mean that the alleged harasser will have his or her employment terminated.
Additionally, if legal remedies are pursued, you will be called to participate in the EEOC’s investigation and potentially litigation. If litigation is pursued, you will be expected to participate in depositions, trial, and all other activities attendant to litigation.