Frequently Asked Questions about Sexual Harassment in the Workplace
When most people think of sexual harassment, they think of lewd sexual comments either addressed to female employees directly or said in their presence and sexual propositioning. In more extreme cases, we hear about unwanted physical touching of a sexual nature and even rape. But, sexual harassment cases can be more complex than you think. Here are the answers to a few commonly asked questions about sexual harassment in the workplace.
Q. What is Sexual Harassment?
According to the EEOC, which is the administrative body responsible for enforcing federal laws that make it illegal to discriminate or retaliate against someone in the workplace, sexual harassment is defined as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Q. Do the federal anti-discrimination laws also protect men against sexual harassment by women?
The answer is yes. The EEOC's regulations make it clear that "[b]oth victim and the harasser can be either a woman or a man. . . ." The fact that sexual harassment at the hands of women occurs so infrequently doesn't mean that the consequences are any less devastating for the men who are the target of inappropriate sexual conduct by their female supervisors. As with the more common form of sexual harassment, male employees who believe they have been subjected to sexual harassment should make a complaint to their employer.
Q. Can a single act be sufficient to establish sexual harassment?
Most employees and employers know that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, can be the basis for a sexual harassment claim. Yet, there are many cases out there where, despite the existence of these things, the court found there was no actionable harassment. In order for harassment to be actionable, it must be shown that it was "sufficiently severe or pervasive." The most important thing to note is that the requirement for showing harassment is either severe
or pervasive. So, a single act of harassment can be sufficient, but only if that one act is sufficiently severe. One example of a single act that is severe enough to establish harassment, is a physical incident.
Q. Is Same-Sex Harassment Against the Law?
What do you do if your male supervisor calls you a "faggot" or a "sissy" and simulates anal sex when you bend over while doing your job? What if you know that supervisor is not homosexual and is not actually attracted to you? Is that still considered sexual harassment? Many employees do not realize that romance and/or sexual attraction are not necessary to prove unlawful sexual harassment in the workplace. The Fifth Circuit held, for the first time, that harassment can be "because of sex" when it is based on a lack of conformity to gender stereotypes. The court found that an employee can be harassed because of his sex, based on the harasser's perception that he did not conform to prevailing gender stereotypes.
Q. What is "Paramour Preference" Sexual Harassment?
Paramour preference refers to situations where a supervisor gives preferential treatment to a sexual partner. Those employees who aren't involved with the supervisor and, as such, do not receive preferential treatment, are the ones that usually bring the claim for sexual harassment.
The EEOC has taken the position that, the sexual favoritism must be widespread in the workplace. The conduct can then establish a hostile work environment regardless of whether any objectionable conduct was directed at them. It also would not matter if those who are treated favorably were willing participants. In other words, those who receive preferential treatment do not have to be victims of quid pro quo sexual harassment.
If you feel you have been the victim of sexual harassment, or if you have any questions regarding your employment rights, please contact Wrady & Michel, LLC, either online or by calling us at (205) 265-1880.