Sexual Harassment in the Workplace


Sexual harassment continues to be a serious problem in the workplace. In a society with attention focused on eliminating sexual harassment, how do we learn to draw the line between acceptable and what can be termed unlawful harassment? How does a court of law review a sexual harassment claim?

Sexual harassment is defined, in the federal context, as a form of sexual discrimination under Title VII of the Civil Rights Act of 1964. According to the Equal Employment Opportunity Commission (EEOC), “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to, or rejection of, this content explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”

There are two types of sexual harassment claims, although the manner in which a court will distinguish between the two for purposes of deciding whether harassment has become blurred in recent years:

  • Quid Pro Quo: Sexual harassment that occurs when a supervisor or one in an authority position requests sex, or a sexual relationship, in exchange for not firing or otherwise punishing the employee, or in exchange for favors, such as promotions or raises; and
  • Hostile Work Environment: Sexual harassment that occurs through the presence of demeaning, exploitative, or sexual photographs, jokes, or threats. The inappropriate behavior or conduct must be so pervasive as to create an intimidating and offensive work environment.

Sexual Harassment: Applying the Definition

It can be difficult to apply the definition of sexual harassment to a set of particular facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with similar facts. It is particularly hard to prove that sexual harassment has occurred in cases with hostile work environments, compared to quid pro quo situations.

Example: Courts may disagree on whether the posting of one piece of pornographic or sexually offensive material is sufficient to create a hostile work environment.

Example: One court may hold that an unwelcome advance (such as an employee asking another coworker out on a date) does not constitute sexual harassment because it did not rise, in that particular case, to the level of pervasive behavior. In another case, however, the court may rule that based on the specific facts of that situation, a rebuffed request for a date could constitute sexual harassment.

The U.S. Supreme Court has held that employers may defend themselves in hostile work environment cases brought against them for actions of a supervisor or managerial-level employee by arguing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior. Employers may also argue that they are not liable if an employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment.
H2: Sexual Harassment: Factors for Review

Factors that a court will consider in a hostile work environment case may include:

  • Frequency of the alleged inappropriate behavior
  • Severity of the behavior
  • Conduct of the victim
  • Context of the alleged harassment
  • Size of the employer’s business
  • Nature of the employer’s business
  • In a hostile work environment claim, whether a reasonable person in the position of thee plaintiff would have thought the environment to be hostile.

Note: If the alleged victim participated willingly in sexual banter or risqué jokes, it will be difficult for them to prove they have been sexually harassed.

Sexual Harassment: Dispelling the Myths

Some of the more prevalent myths are mentioned here (shown in italics), along with commentary as to how courts have dealt with them:

  • Only women can be harassed. This is not true. Courts have ruled previously that a woman can harass a man, although such a situation is slightly more rare than a man harassing a woman.
  • A woman can’t harass another woman, and a man can’t harass another man. This is not true. The U.S. Supreme Court has recognized that illegal sexual harassment can occur between people of the same sex.
  • Sexual harassment can only occur in a workplace. This is not true. The U.S. Supreme Court has ruled that a teacher, professor, and other individuals in authority in school systems (including universities and colleges) can sexually harass students in violation of the law. While the case was decided under Title IX of the Education Amendments of 1972, rather than Title VII of the Civil Rights Act of 1964, the implication was the same: a teacher can sexually harass a student.
  • Only supervisors or those in authority positions can be a harasser. This is not true. A harasser can be a co-worker and, in some cases, a third party, such as an agent or client of the employer. The key is whether the employer knew or should have known of the harassing behavior and failed to take action.

There is much more information provided by the State of West Virginia and the U.S. Department of Labor as it relates to sexual harassment, employment/labor laws, hate crimes, workplace benefits, and health and safety. We provide links to these areas, and Hatcher Law Office welcomes any particular questions you may have. Give us a call.

West Virginia Human Rights Commission
West Virginia Health and Human Resources Website
The Official Website of the State of West Virginia
US Department of Labor
US Department of Labor OSHA
West Virginia Hate Crime Task Force