The Supreme Court first recognized that sexual harassment is a form of sex discrimination in a case titled Meritor Savings Bank v. Vinson, 477 U.S. 57,40 (1986). Traditionally, sexual harassment has been divided into two different forms: quid pro quo and hostile work environment.
The “Hostile Work Environment” Case
One of the most common forms of sexual harassment occurs when the employee is subject to a “hostile work environment.” A hostile work environment can occur when the employee is subjected to hostile, offensive, or intimidating behavior that is so “severe or pervasive” that it alters the conditions of employment and “creates an abusive working environment.” To prove a hostile work environment claim, the employee must show that the conduct was (1) based on sex, (2) unwelcome, and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.
The Conduct Must be Based On Sex
The key element of a hostile work environment sexual harassment claim is that the harasser is engaging in the conduct “because of sex.” Typically, this can include sexual advances, requests for sexual favors, or other verbal, visual, or physical conduct of a sexual nature. Further, the employee does not specifically need to be the target of the harassment if the employee can show that their work performance was interfered with through intimidation and hostility of a sexual nature (e.g. derogatory language, demeaning sex-based terms, degrading pictures, etc.) However, overtly sexual language that is not targeted at an employee or group of employees because of their sex is not actionable. For example, use of vulgar or sexual language in the workplace does not legally constitute sexual harassment if it is unrelated to the gender of the listener(s).
Second, the employee must establish that the harassing conduct was not welcome (or “unwelcome”) which can be shown by evidence that the victim avoided the harasser, complained to the harasser, complained to other supervisors, human resources or other company representatives, or a showing that the conduct was not encouraged.
Severe or Pervasive Requirement
To establish the “severe or pervasive” element, the employee has to meet both an objective and subjective standard. The objective standard requires that a “reasonable woman” would have considered the conduct severe or pervasive enough to alter the conditions of employment and create an abusive working environment. Some relevant factors are the nature of the sexual activity, whether the conduct was verbal or physical, the frequency of the conduct, the duration of the conduct, the context of the harassment, and whether the harassment interferes with the employee’s work performance. Finally, the subjective standard merely requires the employee actually found the conduct to be severe or pervasive.
The “Quid Pro Quo” Case
Although less common than hostile work environment-type claims, the “quid pro quo” harassment occurs when an employee refuses a supervisor’s demands for sexual favors which leads to an adverse employment action against the employee. For example, a supervisor promises a promotion, pay raise, or even not to fire the employee in exchange for sexual demands. Courts recognize that even if the employee does engage in sexual acts with a supervisor based on the supervisor’s threats, the employee can still bring a claim for sexual harassment.