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Sexual harassment in the workplace has become a hot button issue due in large part to the rise of the #MeToo movement. At the same time, many workers may not be aware of the type of conduct that may be considered sexual harassment, and, in particular, what constitutes a hostile work environment. The best way to understand your rights and responsibilities under applicable local, state and federal laws is to consult with an experienced employment law attorney. In the meantime, this article is a primer on the legal criteria for what constitutes a hostile work environment.
Sexual Harassment 101
Generally, there are two forms of sexual harassment — quid pro quo and hostile work environment. Quid pro quo sexual harassment occurs when an employer (usually involving a person in a position of authority), demands sexual favors as a condition of employment or any employment benefit (e.g. promotions, bonuses, raises).
A hostile work environment, on the other hand, involves employee being subjected to a pattern of unwelcome conduct (including comments or visual displays), that is severe or pervasive enough to create an offensive or distressing work environment, thereby making it impossible for the victim to perform his or her job duties. In other words, the offensive conduct must alter the terms, conditions and/or reasonable expectations of a comfortable work environment.
Although certain rude or inappropriate behaviors may constitute a hostile work environment, such as an offhand comment, an employee who is subjected to sexual jokes by a coworker may have a valid sexual harassment claim based a hostile work environment.
What can I do about a hostile work environment?
If you believe you are being subjected to a hostile work environment, tell the offender to stop his or her behavior or communication. This way, you put the person on notice that the behavior is offensive and will not be tolerated. If the conduct persists, it is crucial to document any incidents of sexual harassment. It is also necessary to report the incidents to a supervisor or human resources personnel.
Ultimately, an employer that fails to investigate the matter and take corrective measures if necessary can be held liable for fostering a hostile work environment. This is why it is equally important for employers to take proactive measures by establishing clearly defined procedures for preventing and responding to sexual harassment. In the end, employers and employees have a mutual responsibility to create a positive working environment.