If an employee is a victim of harassment but it turns into a consensual relationship, is it still sexual harassment?
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UPDATED: Aug 15, 2012
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If an employee eventually engages in consensual sex with a person who has been harassing him or her, this does not negate the fact that the prior behavior may be considered harassment under sexual harassment laws. However, this could impact any award for damages that may come from a sexual harassment case, depending on the situation.
Understanding Sexual Harassment
Sexual harassment takes several different forms. If the harasser simply pressures someone into engaging in a relationship, or makes unwelcome advances and/or sexually explicit comments, then this is a form of hostile environment sexual harassment. If a victim eventually gives in or decides to engage in a sexual relationship with the person who created the hostile environment, he or she can still potentially sue for the original discrimination that occurred.
However, one type of damages available for hostile environment sexual harassment called “emotional distress damages,” may be difficult to prove in this case. Because the victim decided to enter into a relationship with the harasser, it may be hard for him or her to prove that the emotional damage caused by the sexual harassment was severe enough to deserve compensation.
“Quid pro quo harassment” is another type of sexual harassment in which the terms and conditions of a person’s job are in some way impacted by whether or not that person engages in sexual behavior. For example, if a woman is told she must sleep with her boss to be promoted or sleep with her boss to avoid being fired, then this is an example of quid pro quo harassment. If the victim gives in and has consensual sex in this situation, the sexual harassment claim is not necessarily negated because the victim may have been coerced into engaging in sexual behavior with the harasser.