What is Sexual Harassment Anyway?

Months deep into the #metoo movement, many people wonder what sexual harassment is and why so many people hesitated to come forward with complaints of sexual harassment.

The easy question is why people don’t come forward with complaints. Fear of retaliation is real.  The reality of retaliation is real.

But defining sexual harassment is more difficult

Both Title VII and Texas Labor Code Chapter 21 prohibit sexual harassment. With these two laws, sexual harassment can occur in one of two ways. The first is called quid pro quo harassment. That occurs when an employee must choose between giving into a sexual demand or losing his or her job (or facing some other adverse employment action).

The second is being subjected to a sexually hostile work environment.

The burden of proof for either type of claim is difficult to meet. To complicate matters, employees have a short period of time to make complaints.

To preserve rights under Texas state laws, the employee must file a Charge of Discrimination with the EEOC or Texas Workforce Commission within 180 days of the harassment. To preserve rights under federal law, the employee has 300 days to file the complaint.

When someone contacts us to see if they have a sexual harassment claim, we must look at the facts to see if we can develop evidence that fits either the quid pro quo or hostile work environment theory.

There are challenges with both. To prove a quid pro quo harassment case, we have to show that the employee received unwelcome sexual advances or requests for sexual favors and that the employee’s response affected his or her employment. The simple example: “Sleep with me or you are fired.” The less simple example:  “Show me your boobs or I won’t give you a raise.”

The far more common complaint is from someone who thinks he or she has been subjected to a sexually hostile work environment. To prove this claim, we have to show that the employee was subject to unwelcome sexual harassment sufficiently severe or pervasive so it affected a term, condition or privilege of employment. We also must show that the employer knew or should have known about it and failed to take appropriate remedial action.

The biggest challenge is establishing that the conduct the employee complains about is sufficiently “severe” or “pervasive” so it alters the terms and conditions of the employee’s workplace.

Our courts are not civility police. A remarkable array of bad behavior does not rise to the level of being sufficiently severe or pervasive to create a sexually hostile work environment. Courts are looking to see if the conduct involves touching, propositions, pornography, sexually derogatory language, jokes or other verbal sexual harassment. The courts also consider the frequency of the conduct, its severity, whether it is physically threatening or humiliating, the victim’s ability to avoid it, and whether it unreasonably interferes with the employee’s work performance.

This is a highly fact-specific inquiry. There is no easy answer on what rises to the level of creating a hostile work environment. For example, a sexually hostile work environment did not exist when a male supervisor, while sitting on the plaintiff’s lap, said “that sure feels good right here” and made a sexual comment about the way she ate a sausage. Likewise, a male co-worker’s comment about another woman’s body, slapping the plaintiff on the bottom with a newspaper, brushing against her breasts and attempting to kiss her once, also did not create a sexually hostile work environment.

Another challenge stems from many employees’ failure to complain about harassment to human resources because they fear retaliation. Again, that fear can be legitimate. But employees must make complaints to Human Resources. Failing to do so could doom a sexual harassment complaint. If an employer has a policy that requires reporting a complaint, an employee’s claim might be barred if he or she made no complaint and didn’t give the employer the change to investigate and fix the problem.

So, employees face the unpleasant choice between complaining internally and risking retaliation or risking the loss of the ability to pursue a sexual harassment claim because they didn’t make the internal complaint. Of course, there are always more legal factors in play and it is often not this simple. But this gives a flavor of the details to be reviewed when analyzing whether someone has a viable sexual harassment complaint.

There is one other path available when there is a single extremely severe incident, such as a sexual assault. When that occurs, an employee can also pursue a common law tort claim such as assault or battery instead of a Title VII or Texas Labor Code claim. This type of claim can generally only be pursued when there is a single very serious incident as opposed to multiple incidents over a lengthy period of time.

What is the bottom line?  It still is difficult to define when conduct is sexual harassment and whether a viable sexual harassment claim exists.

If you believe you have been the victim of harassment, don’t wait too long before contacting a lawyer. If you delay, you risk losing the ability to pursue a claim later.