It’s the 2020's, and the typical office culture is more laid-back than it’s ever been. After years of pandemic isolation, coworkers are ready to let loose. After-work happy hours have become more common, and social media has coworkers connecting like never before.According to a Work in America survey on sexual harassment statistics 2023, the American Psychological Association (APA) stated that in the past 12 months, approximately 22% of workers experienced workplace harassment and about 19% described their work environment as toxic. Mixing business with pleasure may make the workplace more fun, but it also provides ample opportunities for crossing personal boundaries – and potentially venturing into sexual harassment territory.This guide is designed to help you recognize this new environment and its associated sexual harassment risks. You’ll also learn what you might be doing that could enable employees to mistreat each other, and how to stop a harassment epidemic in its tracks.
Definition of Sexual Harassment
The preferred definition, provided by the U.S. Equal Employment Opportunity Commission (EEOC), defines sexual harassment as an unlawful form of harassment based on sex, including: “Unwelcome sexual advances, requests for sexual favors, other verbal or physical harassment of a sexual nature” and “offensive remarks about a person’s sex."Contrary to the harmful stereotype of the powerful male manager tirelessly pursuing the vulnerable female receptionist, sexual harassment isn’t limited to verbal or physical acts. It can also be nonverbal, visual or written. Another myth buster: victims and harassers alike can be of any sex, and of any job description. In fact, 35% of men report that they’ve been the victim of sexual harassment, according to one study. A harasser may even be from outside the company: a client or customer, for example.
Identifiers of Sexual Workplace Harassment
The EEOC’s cut-and-dried definition doesn’t encompass newer and more subjective types of harassment in the workplace. A better alternative? Identifying sexual harassment based on four identifiable elements.
1. Unwelcome Conduct
A telltale sign of sexual harassment is that the conduct is unwelcome. For example, imagine that two coworkers are hanging out privately. Both are active in the conversation, and both are making sexual jokes and laughing. Because the behavior is welcome and embraced by both parties, this is likely not sexual harassment.
2. Based on Sex
The second element is that the harassment is somehow based on sex. Whether it’s harassment due to the victim’s biological sex, gender identity or sexual orientation, incidents of sexual workplace harassment require an underlying theme of sex.
3. Impacts Working Conditions
The third element is that the harassment affects the victim’s working conditions. If the harassment is serious enough, it’s bound to foster a hostile workplace for the victim. This can undermine productivity, drain the victim and derail his or her professional success.
4. Severe or Pervasive
The fourth element is that the behavior is severe or pervasive. Because it’s harassment and less clear cut than something like assault, accidents and miscommunication can happen. A bad joke, a one-off comment or a distasteful poster might not be intentionally harmful. However, ongoing harassment is more likely to be intentional, possibly creating a hostile work environment.
Hostile Work Environment
The law doesn’t prohibit simple teasing, offhand comments or minor isolated incidents.However, harassment is illegal when it becomes so frequent or severe that it creates an abusive work environment, or when it results in a negative employment decision (like the victim being fired or demoted).Hostile work environment sexual harassment might consist of:
- sharing or posting lewd photos or illustrations
- sending sexual text messages or emails
- writing and sending sexual notes
- staring in a sexually suggestive manner
- telling inappropriate jokes
- making inappropriate comments
- inappropriate touching or invasion of personal space
- asking inappropriate or sexual questions
Issues that don’t necessarily contribute to a hostile work environment: a colleague being rude one day, your boss making a cringe-worthy joke or your cubicle neighbor talking loudly on the phone.Since the “totality of circumstances” is the issue, “hostile work environment” is an umbrella term that may include sexual harassment, racial discrimination, age discrimination, disability harassment and many other inappropriate behaviors.
Example of a Hostile Work Environment
Let’s take a look at a recent case.In early 2023, a female Wal-Mart employee who experienced repeated sexual harassment at work was forced to relocate three times in an effort to protect herself and her family. According to the lawsuit she filed with the New York State Supreme Court, a male employee exposed himself to her, asked her for sexual favors and showed up in person both at her home and at her child’s school. When she complained to a manager, the manager confiscated her phone to discourage her from calling the police. He also attempted to buy her silence with a pay raise after being caught having intercourse at the store with a different female employee.By ignoring the woman’s complaints and engaging in sexual activity with employees himself, this manager was clearly allowing a hostile work environment to flourish.
Quid Pro Quo Sexual Harassment
In our quid pro quo sexual harassment guide, we define quid pro quo sexual harassment as: “A type of workplace sexual harassment in which an employee’s submission to or rejection of a superior’s sexual demands affects employment decisions, either positively or negatively.”Quid pro quo sexual harassment typically involves an employee being pressured by a superior to provide a sexual or romantic favor in exchange for something job-related, like getting a promotion or avoiding a demotion.Quid pro quo sexual harassment stories dominate the #MeToo and #TimesUp headlines. You know the story – the promise to discuss a promotion, but only in the comfort of the boss’s hotel room.In quid pro quo sexual harassment, the harasser might offer:
- a promotion
- a raise
- a bonus
- a better office
- an assistant
- more training
On the flip side, a harasser might also threaten a subordinate with:
- termination
- demotion
- a pay cut
- reduced benefits
- less responsibility
It’s important to note that even if a harasser doesn’t follow through on these threats or rewards, the perception by the victim that they are real is enough to make this quid pro quo workplace harassment.
Example of Quid Pro Quo Sexual Harassment
Suppose an employee has been longing to attend a trade show in Paris. Her boss says she can attend – as long as she agrees to go on a date with the company’s largest client while in Paris. Even though the boss isn’t asking to go on the date, this request still constitutes quid pro quo sexual harassment.
Modern Harassment at Work
Sexual harassment in today’s workplace doesn’t always look like the familiar scenarios that probably come to mind. These days, it can be much more subtle. Slimmed-down management structures and increasingly laid-back company cultures make it more difficult to determine on what’s appropriate, and exactly what behaviors may be creating a hostile work environment.Quartz writes about these blurred lines, and how much harder it’s gotten to identify sexual harassment – especially when “filtered through the lens of workplace power and politics.”Sexual harassment might occur as a flurry of inappropriate text messages in the middle of the night. It could be a colleague approaching another colleague on multiple occasions during an office outing, despite being told repeatedly that the victim is not interested. It may even be a series of crude and uninvited photos sent from across the lunchroom.
When professional and personal lives become intertwined, it often becomes more difficult to set boundaries. The lines between appropriate and inappropriate behavior are no longer so easy to define. Just think – until fairly recently, employees never had to decide whether a text was friendly or flirty. Texting wasn’t even a thing. In many ways, life has gotten way more complicated.Quid pro quo sexual harassment can also look different in today’s workplace.Thanks to dating apps like Tinder and business-social networks like LinkedIn, conversations that aren’t appropriate for the office can easily take place online. There’s much more opportunity for colleagues to pursue one another when they’re not confined to four office walls.But this potential doesn’t limit itself to healthy relationships between colleagues. Offering a promotion in exchange for a date is still sexual harassment, whether the offer is made online or in person. And sexual harassment is still illegal, no matter what medium is used.Employers need to recognize the role that technology and casual office environments play in creating new forms of sexual harassment. When we blend our personal and professional lives too much, sexual harassment might even be mistakenly interpreted as a successful team-building exercise.Quartz notes that as companies transition to increasingly fluid environments, they must “remember not to blur the lines between work, play and consent to do either” unless they’re prepared to be found liable for fostering a toxic environment.
Employer Liability
A victim of sexual harassment may have a criminal case against their harasser. They may also be entitled to compensation based on a growing number of federal, state and municipal laws that explicitly prohibit sexual harassment in the workplace.Depending on the harasser’s job role and the type of sexual harassment being alleged, an employer may be found liable for sexual harassment occurring in their workplace.According to Jaclyn Wishnia, J.D., examples of scenarios in which an employer could be held liable for workplace harassment include:
- “When an employer is viewed as the proxy of their employees, such as the CEO of a corporation;
- If an employer does not take reasonable steps to prevent the occurrence and continuance of a hostile work environment.
- When there is evidence that the employer themselves has committed a form of sexual harassment; especially, if it is “quid pro quo” sexual harassment; and/or
- If the employer has direct authority over an employee or an employee’s supervisor and does not instruct that employee or supervisor to stop their unwanted sexual behavior.”
Companies are legally responsible for creating and maintaining a safe working environment. That means it’s unlawful to overlook or ignore incidents of sexual harassment. This is known as vicarious liability.An employer who should have known about sexual workplace harassment in their office (and especially an employer who “looks the other way”) may be found guilty of vicarious liability.“On the other hand, an employer will most likely not be liable for a claim involving sexual harassment if they took reasonable steps to stop it and it is between parties who are under the direction of other supervisors at the company,” says Wishnia.
