The following is referenced by a book written by two attorneys who advocate for women’s rights in the workplace. This is a summary of the different ways that harassment can manifest in the workplace and which kinds of harassment qualify as sexual harassment (using sex – or even gender identity – as a factor in the harassment). This article also explains what elements need to be present to present a scenario before a court of law as a sexual harassment case. Note that this article does not substitute for professional legal advice, even though it will provide you a guideline to follow when considering whether you have been subjected to sexual harassment at work.
Questions to answer when considering whether something that took place at work was sexual harassment:
- Was the conduct sexual in nature?
- Was the conduct unreasonable?
- Was the conduct severe or pervasive in the workplace?
Was the conduct unwelcome?
A. Harassment falls under a bunch of categories:
This includes anything from (1) sexual advances (e.g., sexual favors) to (2) outright hostility only to women employees or a singular woman employee to (3) lewd, sexual, or pornographic images, languages, or jokes that contribute to creating a sexually-charged atmosphere that is both humiliating and offensive. The environment can be developed by supervisors and other in authority, by coworkers, or by customers and others. If preferences are shown by one party to another, this also may be due to using sex or gender identity as a distinguishing factor in discriminating behaviors in the workplace. This is also a form of sexual harassment.
B. The Reasonability Test
The reasonability test has to do with the idea that if a reasonable person were to hear about these events, would they also think that these events were mortifying and of a sexual nature? This type of test is important in situations where there may be ambiguity in terms of how specific exchanges, behaviors, and phrases were interpreted. The test (and how you can win your case) consists of the following: can you show evidence that you indicated clearly to the harasser that you found his conduct unreasonable? And did he furthermore violate that standard once you set it clearly? Start documenting the evidence of this as soon as you realize that it is happening. You can use a journal with dated entries discussing the details of the violations and how they affected you.
The reason for this test is to avoid using the law to “serve as a vehicle for vindicating the petty slights suffered by the hypersensitive” (quoted in Petrocelli & Repa, 1992, 2/15). Note, however, that the vast majority of times women accuse a man of sexual harassment in the workplace, it is because they have exhausted all other means of resolving the situation first and have still encountered severe emotional, psychological, physical, or other difficulty in being able to complete their jobs at work in the face of this type of sex-targeting behavior.
While the reasonability test originally was held from the perspective of a reasonable man, court precedent has now made the reasonability test qualified from the perspective of a reasonable woman, since the woman is usually the person who has had to deal with the unwanted activity to begin with. Clearly the man thought himself to be reasonable or he wouldn’t have done it.
C. Conduct that is severe or pervasive
Is the sexual conduct you’ve witnessed so severe and so pervasive in the workplace that it makes the working environment hostile or offensive? Consider the following ideas when coming to your own personal judgment about this idea:
- Whether the conduct was physical, verbal, or both
- How often it happened (frequency)
- Whether the conduct was patently offensive and hostile
- Whether the harasser is a supervisor or coworker
- Whether others also participated in the harassment once it was started
- Whether the harassment was directed at a group or at an individual
- Maybe it’s not one event that defines and encapsulates the harassment, but actually a period of several distinct events that add up to a totality of a sexually harassing environment
D. Conduct that is unwelcome
To prove her case in a court of law, a woman has to show that the sexually-charged conduct in question was unwelcome and offensive to her at the time it occurred. This can be difficult to show since interpretation and reflection are very subjective in nature. Here are some factors that would be taken into account to show that the conduct has been unwelcome:
- Voluntary but unwelcome – a woman may have voluntarily submitted to an employer’s sexual advances, but she did not actually want to do them at the time. Why might a woman be in this situation? Perhaps she is in fear of losing her job or a promotion, so she submits to the sexual favors the boss is asking for.
- The employee’s appearance – the courts unfortunately still judge a woman’s “sexually provocative speech or dress” as evidence as to whether she was “asking for it.” While this is still a politically-heated criterion for evidence, it, nonetheless, still matters in court. Beauty is in the eye of the beholder, so if the beholder is a man, he may think that a woman’s dress is more provocative than she ever intended. To combat this criterion used as evidence against a woman’s claim that the assailant has sexually assaulted her, a woman needs to be able to show that she explicitly articulated to the assailant that those advances were not welcome.
- Coping strategies – signs that a woman has been subjected to sexual harassment while at work. These signs manifest, for example, as any of the following mechanisms:
- denying the impact of the event
- blocking out an event
- avoiding a harasser or the entire workplace
- telling the harasser to stop
- engaging in joking or other banter that tries to defuse the harassing situation
- threats to make an informal or formal complaint against the accused
To prove a legal case using coping strategies as an argument, a woman needs to show that she has corroborated the intent of engaging in such coping strategies only out of fear and not out of a desire to participate in them of her own volition. Perhaps she is in fear of retaliation for objecting or of losing her job. She should confide in as many people (friends, coworkers, relatives, etc.) to provide evidence that she did not support the behavior and instead found it extremely unwelcome.
- Breaking off a relationship
By being in a romantic relationship with an employer a woman does not forfeit her right to protection from sexual harassment. However, moving forward a woman must make it clear to her harasser that any further sexual advances are no longer welcome. A prudent thing for a woman to do in a situation where she breaks off a formerly welcome romantic relationship with a coworker is to make it apparent to many others in the office that she no longer is in a relationship with him and is no longer welcoming any romantic/sexual advances from him.
- Employee’s limited consent
Under the law, employees have limited ability to consent to a relationship with an employer. This is because there is an obvious unequal balance of power between the two parties supposedly “consenting” to the relationship.
Additionally, just because a workplace may include work of a sexual nature (e.g., modeling, Playboy/Penthouse, strip club, escort service), it does not imply that a woman has forfeited all of her rights to her own body. Just because her work is of a sexual nature does not mean that she should be required to submit to sexual advances from clients or others in the workplace. Behavior that falls outside the normal nature of the work (for example, a man fingering a stripper over or through her thong while she is giving him a lap dance) does constitute harassment, because it is coerced sexual activity that she did not explicitly sign up for when accepting that job title. She is still perfectly in the right to file a sexual harassment suit against that man for touching her inappropriately at work, even though something like stripping is work of a sexual nature.
Please note that even if your specific experience with sexual harassment has not been covered in this article, you may still be able to file a viable suit against your aggressor. Please consult professional legal advice when considering whether it makes sense to move forward with a suit.
Rozalyn Davis holds an M.S., Chemistry, from the University of California, Berkeley, and a B.S., Chemistry, from Purdue University. Her interests include women’s empowerment, health and wellness, and environmental sustainability.