More than half of all workers have experienced sexual harassment. While the majority (about 80%) are women, both men and women can be victimized by unwanted sexual attention in the workplace.
Sexual harassment runs a continuum from periodic comments to daily campaigns of victimization. Serious sexual harassment undermines workplace productivity, harms victims and bystanders, and can even lead to serious mental health conditions such as post-traumatic stress disorder (PTSD). Understanding what does and does not constitute sexual harassment is the first step toward combating this source of workplace misery.
Understanding Sexual Harassment Law
In North Carolina, two separate laws address issues of sexual harassment. The first is Title VII of the Civil Rights Act of 1964. This federal law makes workplace sexual harassment illegal and entitles victims to sue their harassers or employers in federal court. North Carolina also has a state law against sexual harassment. In addition to prohibiting workplace harassment, the state law mandates that government employers develop a plan to prevent unlawful workplace harassment.
The Equal Employment Opportunity Commission (EEOC), the primary government organization charged with enforcing anti-sexual harassment laws, outlines three types of sexual harassment. According to this definition, sexual harassment occurs whenever there are unwelcome sexual comments, behaviors, requests for favors, or sexualized physical contact and:
- An individual feels pressured to allow the advances to remain employed; or
- Employees who don’t submit to such advances are denied promotions or other benefits; or
- The sexualized environment creates an intimidating or hostile workplace or interferes with the ability of the employee to perform her job.
Note the emphasis here on unwelcome advances. Sexual harassment laws are silent on consensual relationships, welcomed compliments, and other normal workplace behaviors.
What Is Sexual Harassment?
Although the law seems clear enough at first blush, workplaces are dynamic environments, and coworkers are sometimes close friends. It’s no wonder, then, that workers may worry that jokes, normal employee interactions, or office romances might constitute sexual harassment. The key, though, is that sexual harassment has a victim and a victimizer – there is no consent. If the behavior is mutual or consensual, it’s not harassment. Some examples of workplace sexual harassment under North Carolina and federal law include:
- Repeatedly hitting on a coworker or persistently asking for a date, even when you’ve been turned down or the coworker has asked you to stop.
- Making compliments that most people would consider inappropriate. Complimenting a co-worker on her earrings is not sexual harassment, but complimenting her on her breasts is. Further, making any comments on a person’s appearance can be considered sexual harassment if you’ve been asked to stop.
- Creating a demeaning or hostile work environment by hanging lewd pictures of women, repeatedly making sexual jokes, or holding workplace functions at sexualized locations, such as strip clubs.
- Sexually touching a co-worker against his or her will. This behavior includes everything from patting a coworker on the behind to rape and sexual assault.
- Demanding sex or sexual favors from an employee and promising rewards or threatening punishments if he or she does not comply. A boss who asks his secretary for a date, then promises to give her a promotion if she says yes has engaged in sexual harassment.
- Asking inappropriate questions about a worker’s private or sex life. Persistently asking about a co-worker’s dates, asking what she likes in the bedroom, or constantly inquiring as to the status of her relationship can all be sexual harassment.
- Making sexually suggestive sounds or gestures, particularly if these behaviors are directed at a coworker or designed to offend someone with whom you work.
- Workplace stalking. Calling a coworker once is not sexual harassment, but waiting by her car every day or calling her at home when she has asked you to stop can be harassment.
- Using sexual slurs, such as calling a woman a slut.
All instances of sexual harassment share in common that they are unwanted and occur against the victim’s will. Except in serious cases of sexual harassment that involve rape or other highly threatening behavior, sexual harassment also has to be part of a long-standing pattern. For example, if you compliment a coworker once and she asks you to stop, you’ve not engaged in sexual harassment unless the compliments continue.
Both individual workers and employers can be liable for sexual harassment. Workers are liable for their own harassing behavior. When an employer knows or should have known that harassment was occurring, or when the employer creates an environment that encourages sexual harassment, the employer is liable even if he or she did not directly participate in the harassment.
What Behavior Isn’t Sexual Harassment?
Given the high cost of defending sexual harassment lawsuits, it’s understandable that some employers are a bit paranoid about preventing workplace harassment. Some bosses, for example, explicitly prohibit workplace romances, while others require that couples register with the company’s human resources department. While these strategies are effective ways to prevent some forms of harassment, they can also leave workers wondering what does and doesn’t constitute harassment.
In short, any consensual behavior is not harassing, so long as a third party isn’t victimized. For example, an office couple that dates and then breaks up has not engaged in harassment. A couple that makes sexualized comments to a third party, however, could be engaging in harassment. Some examples of behavior that is not harassment include:
- Dating a co-worker.
- Having sex with a co-worker.
- Engaging in flirtatious banter with a co-worker. As long as the behavior is consensual and is not directed at a third party, it’s not harassment.
- Paying an innocuous compliment to a co-worker. If the compliment is the sort of compliment you’d give to a stranger and which you have no reason to believe the other person would find objectionable, it’s probably not harassment.
- Making small talk about private or personal lives.
- Sharing details of your sex life with a workplace friend who asks for the details and with whom you feel comfortable discussing such topics.
Of course, every employer has the right to set its own standards. Consequently, a person could be fired for behavior that is not legally sexual harassment if her employer prohibits the behavior. Likewise, it’s possible to engage in illegal sexual harassment without being penalized in the workplace. The key to protecting your right to a harassment-free workplace is knowing the law governing sexual harassment and being familiar with your rights.
What should I do if I’ve been sexually harassed at work?
If you feel you’ve been sexually harassed at work, make sure to keep records about the harassment. You should first speak to a supervisor or a member of the Human Resources department. Your employer should take steps to ensure that the harassing behavior is prevented from continuing. If your employer ignores your request or does not take sufficient action to prevent harassment, you should speak to an experienced employment attorney. Your attorney can help you decide on the best course of action in your unique case. If you’ve been harassed at work, you may be entitled to legal remedies against the harasser and against your employer. Contact us to schedule a consultation with an experienced attorney.