Have you been sexually harassed at work? Find out what constitutes sexual harassment under the law.

Sexual harassment is everywhere in the news right now. From Harvey Weinstein to Al Franken to Louis C.K. to Matt Lauer, it seems like every day there are new revelations of sexual harassment in the workplace.

So, what exactly is sexual harassment under the law?

Workplace sexual harassment affects women in every profession and across every demographic. But anyone, male or female, can be a victim of sexual harassment, and a harasser can be a woman or a man, or they can be the same sex. A man might harass another man, a woman might harass another woman.

Federal law considers sexual harassment a form of sex discrimination, which violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. There are also state laws that prohibit sexual harassment, including the New Jersey Law Against Discrimination (“LAD”). The LAD prohibits employment discrimination against any person on the basis of the LAD’s protected categories, which include sex, sexual orientation, and gender identity.

Guidelines published by the federal Equal Employment Opportunity Commission (“EEOC”) define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  • Submission to such conduct is a term or condition of employment, whether stated outright or implied.
  • Submission to or rejection of the conduct is a basis for employment decisions, like promotion, hiring, firing, or getting a raise.
  • Conduct of a sexual nature has the purpose or effect of unreasonably interfering with work performance.
  • Conduct of a sexual nature creates an intimidating, hostile, or offensive working environment.

Unwelcome is the critical word, and it means the sexual conduct must be unwanted. Sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome.

The kinds of behavior that constitute sexual harassment can vary depending on the situation and people involved. Sexual harassment might include unwelcome sexual advances or requests for sexual favors. Direct or indirect threats or bribes in exchange for sexual activity may be sexual harassment. Sexual innuendos and comments, or sexually suggestive jokes may be sexual harassment in some contexts. Unwelcome touching or brushing against a person, or displays of explicit material may be sexual harassment. Finally, attempted or completed sexual assault is sexual harassment.

There are generally two types of sexual harassment, “quid pro quo” and “hostile work environment.”

Quid pro quo sexual harassment occurs when employment decisions – like promotions, assignments, or keeping your job – are based on your willingness to submit to the sexual harassment. Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:

  • submission to such sexual conduct is  explicitly or implicitly a term or condition of employment, or
  • submission or rejection of the sexual conduct is the basis for employment decisions.

A hostile work environment occurs when sexual harassment makes your workplace environment intimidating, hostile, or offensive. Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct is hostile environment sexual harassment when:

  • the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance, or
  • the conduct creates an intimidating, hostile, or offensive working environment.

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.  In fact, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the offensive conduct.

If you have been sexually harassed in your workplace, call us for a free, confidential consultation at 732-325-0318.

 

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