When is Sexual Harassment Illegal?

MeTooThanks to the #MeToo movement, accusations of sexual harassment — especially against powerful men in media and government — are in the news almost every day.

Harassment may be unpleasant for the victim, and it can get the perpetrators fired. But when is it actually illegal?

An Op-Ed in the New York Times explains that offensive and even outrageous acts may not be against the law.

For example,

In a case that went to federal court in the early 1990s, a woman presented evidence that her supervisor tried to kiss her on multiple occasions, placed “I love you” signs on her desk, called her a dumb blonde, put his hands on her shoulders and asked her out on dates. The trial court judge dismissed her suit, declaring that this conduct did not meet the threshold for sexual harassment, and the appeals court affirmed the dismissal.

In a more recent case, in 2014, a court dismissed harassment claims by two waitresses who said that their co-workers kissed them, brushed up against their bodies, and made sexual comments. One of the co-workers repeatedly said that he wanted one of the waitresses to have his baby.

A court also dismissed a 2000 case in which a construction worker said his boss blew kisses at him, commented on his behind, asked him to sit on his lap, and made comments about raping him.

Civil Rights

In 1986, in the case of Meritor Savings Bank v. Vinson, the US Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin.

The acts have to be "severe or pervasive" in order to qualify as "harassment."

In deciding a harassment case, a judge is supposed to let a case proceed to a jury if the plaintiff presents "some" evidence to support the claim of harassment. It's then up to the jury to determine whether the acts took place and whether they qualify as illegal harassment.

Rape of an employee by an employee is consistently seem as "severe" enough to qualify as harassment. Ongoing sexual remarks and daily taunting have been seen as "pervasive."

However, as shown by the examples above, other types of sexually offensive conduct may not be considered harassment.

Defining Sexual Harassment

According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, or
  • Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or
  • Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

Unwelcome Behavior

The key is that the behavior must be "unwelcome."

Thus, in many cases of sexual harassment, the defendant will claim that the behavior wasn't unwanted and may even have been solicited by the alleged victim.

Since there are often no witnesses to acts of alleged harassment, cases often turn on the credibility of the plaintiff and defendant.

Credibility

According to the EEOC’s Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,

If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?

Demeanor: Did the person seem to be telling the truth or lying?

Motive to falsify: Did the person have a reason to lie?

Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?

Past record: Did the alleged harasser have a history of similar behavior in the past?

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