Understanding What Is and Isn't Sexual Harassment: QuickTake Q&A

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Meg Whitman Says Harassment Cases May Be 'Tipping Point'

It seems like hardly a day goes by without a disclosure of sexual harassment claims against a man in a powerful position, from Harvey Weinstein to Louis C.K., Matt Lauer and Garrison Keillor. Some commentators are asking where it will all end, with TV personality Geraldo Rivera tweeting that the "epidemic" of accusations could be "criminalizing courtship." Many companies have policies forbidding sexual behavior that go beyond legal proscriptions. Still, it’s worth sorting out where the legal lines lie -- to distinguish the acceptable from the unacceptable, and the legally actionable from the isolated incident.

1. What is sexual harassment?

Unlike criminal acts of sexual abuse or sexual assault, harassment in the U.S. is a matter of civil law, tied to the workplace. The U.S. Equal Employment Opportunity Commission, which is responsible for enforcing federal laws against job discrimination, defines it as "unwelcome sexual advances, requests for sexual favors or other verbal or physical harassment of a sexual nature" in a work environment. The harasser needn’t be in a superior role to the victim and can be a non-employee, such as a client or customer. Courts have ruled that the harasser and victim can be the same sex.

2. Is sexual harassment illegal?

In the U.S., yes. It’s a violation of civil rights law. The law around sexual harassment is rooted in Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discriminate on the basis of sex. Because the act doesn’t mention harassment, the legal doctrine on the issue has emerged and evolved out of court rulings and guidelines issued by the the EEOC. The commission divides harassment into two types: quid pro quo and hostile-environment harassment.

3. What’s quid pro quo harassment?

That’s when an employee’s acceptance or rejection of unwelcome advances is used as the basis of workplace decisions that impact the individual. Peers can be found to engage in this type of harassment by, for example, choosing to collaborate with or not collaborate with a colleague based on her receptivity to advances. Because of the risk of quid pro quo harassment claims, companies often prohibit managers from engaging in any kind of romantic interaction with employees they supervise.

4. What if an employee consents to advances?

The Supreme Court held in 1986 in the case Meritor Savings Bank v. Vinson that the issue is whether sexual advances were "unwelcome," not whether the target’s participation was voluntary. Under the standard set out by the opinion, the conduct creates a "hostile environment" if it is both unwelcome and sufficiently severe or pervasive enough to alter the conditions of employment. What constitutes "severe" or "pervasive" is up to interpretation by courts.

5. What if the target suffered no economic harm?

In the same ruling, the court held that it’s not necessary to show economic or tangible injury to prove discrimination. In such a case, the harassment would fall more in the hostile-environment category. The court found that "sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality."

6. What if the offending behavior was mild or isolated?

An isolated remark, a quick hug or putting an arm around a colleague in a group photo likely would not qualify as "severe" or "pervasive" conduct. The EEOC says "sexual flirtation or innuendo" or "vulgar language that is trivial or merely annoying" probably would not create a hostile environment, because that claim usually requires a pattern. Courts usually evaluate whether conduct is "severe" or "pervasive" from the standpoint of a "reasonable person." The law is not a "vehicle for vindicating the petty slights suffered by the hypersensitive," a district court found in a 1984 case.

7. What if a customer is doing the harassing?

Although the case law is not as well-developed, courts have found that companies can be held liable for a hostile environment created by customers if the company could have taken reasonable steps to fix the problem and opted not to do so.

8. What remedies are available to victims?

Court rulings have made clear that under Title VII, it is companies that are liable for sexual harassment by their employees. Consequently, most companies have policies forbidding sexual harassment, and a complaint to upper management or human resources will sometimes lead to the behavior being stopped with anything from a reprimand to a dismissal of the harasser. An alternative, or subsequent step, is to file a lawsuit. In either case, it’s illegal for an employer to retaliate against someone for reporting harassment. Before suing, it’s necessary to file a complaint with the EEOC, which will investigate and, if it finds discrimination has occurred, attempt to reach a settlement. If the case goes to a judge, employers can be held liable for damages including back pay, compensatory damages for harms imposed and emotional distress, and punitive damages.

9. What about criminal charges?

When conduct goes beyond the definition of sexual harassment and qualifies as rape or sexual assault, it can result in jail time. Such acts are generally prosecuted under state law, so the penalties and exact definitions of the crime vary from state to state. Most states impose a statute of limitations for bringing sexual assault cases. In some states, battery can be prosecuted for any kind of touching without consent that resulted in harm to the victim, in some cases including emotional harm. Rape and sexual assault are usually felony charges, while more minor incidents of battery may be prosecuted as misdemeanors. In many instances, a conviction for a serious sex crime can also lead to offenders being placed on sex-offender registries.

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