What Constitutes Sexual Harassment?

There is no hard rule that Courts use to determine what constitutes Sexual Harassment; however, Courts use certain guidelines as well as use a totality of the circumstance test. Generally speaking, the conduct/harassment needs to be more than merely insulting or rude and boorish behavior. The anti-Sexual Harassment laws are not intended to be “general civility codes.” The required standard is to establish that the conduct/harassment was so severe or pervasive that it adversely affected the terms or conditions of the employee's employment. The adverse effect on the employee must be subjective, as well as objective. Not only must the employee suffer from the harassment, but it is also required that a reasonable person in the shoes of the employee would likely have suffered from such conduct. The latter is primarily a jury issue, if a minimum of bad conduct on the part of a co-worker or supervisor is established.

Certainly, repeated, unwanted touchings in the work place is sexual harassment. Repeated sexual jokes, if offensive, may also rise to the level of harassment.

With co-worker sexual harassment, the employer must be given an opportunity to stop the sexual harassment. This usually means that the employee is required to inform his or her manager or human resources of the offensive conduct in order for the employer to enjoy liability.

With sexual harassment by a supervisor, it gets a bit trickier. If the employer has a direct and appropriate policy and procedure to address sexual harassment by a supervisor, the employee should follow the process; otherwise, the employer may have an affirmative defense against the employee and abscond liability.

Of course, after an employee complains of sexual harassment, and the employer does nothing or, even worse, if the employer retaliates against the employee, then the employer incurs liability, including an additional claim of retaliation under Title VII.