Sexual Harassment: When Does Conduct Cross The Line?

One of the hardest decisions judges and juries have to make is determining when an amorous advance turns into sexual harassment.  In EEOC v. Prospect Airport Services, Inc., the court confronted a case where a female employee repeatedly pestered a male worker with sexual advances. The court offered a cogent analysis of how a fact finder should approach the issue. There are three basic requirements to prove a claim of sexual harassment:  (1) the conduct must be sexual in nature; (2) it must be unwelcome, at least from the perspective of the plaintiff/victim; and (3) it must be severe or pervasive.

In the Prospect Airport Services case, the court had no trouble with the first two elements. The advances by the female employee were clearly sexual and they are clearly unwelcome.  But it was with respect to the third element that the court offered an insight:

“Title VII is not a ‘general civility code.’ A violation is not established merely by evidence showing ‘sporadic use of abusive language, gender-related jokes, and occasional teasing.’ A violation is established when the unwelcome sexual conduct is ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’  Whether a working environment is objectively ‘abusive’ ‘can be determined only by looking at all the circumstances,’ which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.... [N]o single factor is required.’ The ‘severe or pervasive’ element has both objective and subjective components. We consider not only the feelings of the actual victim, but also ‘assume the perspective of the reasonable victim.’ There is a subjective requirement as well as an objective requirement, because ‘if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment.’

Not all propositions for romance or more are sexual harassment. People spend most of their waking hours with other people at their workplaces, so that is where many meet and begin social relationships, and someone has to make the first overture. Some people have more social finesse than others, and many might suggest coffee or a trip to an art exhibition rather than sex, but mere awkwardness is insufficient to establish the ‘severe or pervasive’ element. Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.

To be actionable, the conduct must go beyond the ‘merely offensive’ so that it changes the terms and conditions of the victim's job. Because a ‘sexual harassment case’ is against the employer, not the harasser, and ‘only the employer can change the terms and conditions of employment, an isolated incident of harassment by a coworker will rarely (if ever) give rise to a reasonable fear that sexual harassment has become a permanent feature of the employment relationship.’ We weigh both severity and pervasiveness to evaluate whether a reasonable victim would think that sexual harassment had become a permanent feature of the employment relationship. And because only an employer can change the terms and conditions of employment, that will rarely if ever be the case, if the employer takes appropriate corrective action upon finding out about the harassment. At least for coworker sexual harassment, the employer could not reasonably be expected to think an abusive environment had been created for an employee if the employer did not know of the conduct and its unwelcomeness. But here it did.”
The moral of the story is this:  if you are the victim of sexual harassment, let your employer know about it, preferably in writing, so you can prove that notice has been given. And if you are an employer who receives such a notice, don’t ignore it.  Respond appropriately and take reasonable corrective action if it is called for.

For your convenience, a complete copy of the court’s ruling is attached.

We regularly advise both employers and employees regarding various legal issues that arise in the workplace. Feel free to contact us if you need assistance in this area.

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