The law generally recognizes two primary types of sexual harassment claims:
Quid pro quo harassment is when someone in a position of power uses his or her authority to make sexual demands in exchange for offering a workplace benefit. Hostile work environment harassment involves unwelcome sexual behavior that creates an abusive or offensive workplace environment.
Both of these involve unwelcome sexual conduct. If you have been subjected to either one, you have legal options. Depending on which of the two types of sexual harassment it is, you may be able to hold your employer liable.
What is quid pro quo sexual harassment?
Quid pro quo sexual harassment is when a workplace benefit is made contingent on a sexual favor.[1] The phrase “quid pro quo” is Latin for “this for that.”
The connection between the workplace benefit and the sexual favor can be either express or implied.[2]
The workplace benefit, also known as a tangible employment action, can be any of the following:
- getting hired,
- a promotion,
- receiving a pay raise,
- getting a choice assignment,
- securing a wanted transfer,
- a more favorable work schedule,
- avoiding a demotion,
- continued employment, or
- getting disciplinary action dropped.[3]
Because supervisors are generally the only ones who can take these actions, quid pro quo sexual harassment nearly always involves a supervisor and a subordinate. However, there are times when coworkers can commit quid pro quo sexual harassment.
The sexual favor does not necessarily have to be sexual intercourse. It can be any of the following:
- kissing,
- physical contact,
- touching intimate body parts,
- going out on a date, or
- any other unwelcome sexual conduct.[4]
All that matters is that they are unwelcome sexual advances. If the conduct is consensual, it is not sexual harassment.
If you reject the sexual advances and suffer a tangible employment action, it is strong evidence of quid pro quo harassment. If you reject the advances and nothing happens, it can still create a hostile work environment.[5]
What amounts to a hostile work environment?
The other form of sexual harassment is the creation of a hostile work environment. A hostile work environment is one where sexual harassment is either severe or pervasive enough that it creates a workplace that is:
- offensive,
- hostile, or
- abusive [6]
The conduct does not have to be both severe and pervasive to amount to harassment.[7] It does, however, have to be both:
- objectively offensive to a reasonable person, and
- subjectively offensive to you, personally.[8]
Whether the unwelcome sexual conduct is severe or pervasive enough to be harassment depends on all of the circumstances.[9] Generally, this means that it will be up to a jury to decide whether the conduct amounted to harassment.[10] Some factors include:
- how frequently the conduct occurred,
- how severe it was, ranging from sexual jokes or innuendos to a sexual assault,
- whether it was physically threatening,
- how humiliating the conduct was, and
- whether it interfered with the victim’s work performance.[11]
According to the Supreme Court of the United States, being forced to put up with this unwelcome conduct alters the conditions of employment. This makes it a form of sex discrimination under Title VII of the Civil Rights Act of 1964, the main federal law regulating discrimination in the workplace.[12]
Anyone can create a hostile work environment. This includes:
- supervisors,
- coworkers,
- customers,
- clients,
- bystanders, and
- vendors.
Importantly, the victim of sexual harassment does not have to suffer economic losses[13] or even necessarily any psychological harm.[14]
However, not all unwelcome conduct creates a hostile working environment. Isolated or minor incidents of a sexual nature are insufficient.[15]
How common are these types of sexual harassment?
The U.S. Equal Employment Opportunity Commission (EEOC) received 98,411 charges alleging workplace harassment between 2018 and 2021. Of those, 27,291, or 27.7 percent, alleged workplace sexual harassment.[16] The EEOC does not, however, differentiate between the different types of sexual harassment.
The EEOC’s numbers are likely only a fraction of the total number of harassing incidents. Studies have found that fewer than 20 percent of people who say they were harassed in the workplace did not file a charge with the EEOC.[17]
When can I hold my employer liable?
You can hold your employer liable for sexual harassment in the workplace if:
- your employer is the one doing the harassing behavior or making unwanted sexual advances,
- your supervisor’s harassment led to a tangible employment action, or
- you correctly reported the hostile work environment internally, but your employer failed to take action.
Holding your employer liable is important. It can ensure that you recover compensation for the damages that you have suffered. That compensation is meant to cover your:
- lost wages and benefits, in the form of back pay,
- lost future earnings, or front pay,
- mental anguish,
- emotional suffering,
- lost reputation,
- court costs, and
- attorneys’ fees.[18]
In egregious cases, the court may also award you punitive damages.[19] These often involve physical conduct of a sexual nature.
However, sexual harassment cases that proceed under the federal employment law Title VII have damage caps. These limit the amount that you can recover. They depend on the size of your employer:
- $50,000 if your employer has 15 to 100 employees,
- $100,000 if your employer has 101 to 200 employees,
- $200,000 if your employer has 201 to 500 employees, and
- $300,000 if your employer has 501 or more employees.[20]
Note that Title VII only applies to employers with 15 or more employees.[21]
You can also be reinstated to your position.[22]
Many state laws offer more robust legal protections. Getting the legal advice of a lawyer from a reputable law firm can help you determine how to best file your sexual harassment claim.
Employer is the harasser
Occasionally, the person behind the unwelcome sexual conduct is the owner of the company that employs you. If this is the case, the employer can be held liable.
For example: Paul owns a company that builds stereos. Lisa works there. Paul asks her out every day, requests sexual acts, and asks her to pose naked in exchange for overtime pay. Whenever Lisa refuses, Paul implies that she will be fired.[23]
Supervisor took a tangible employment action
You can also hold your employer liable if a supervisor committed the sexual harassment. Employers are strictly liable for their supervisor’s actions when they lead to a tangible employment action.
A supervisor is someone with the power to do the following with respect to you:
- hire,
- promote,
- fire,
- demote,
- discipline, or
- transfer. [24]
If your supervisor makes one of these employment decisions contingent on a sexual favor, you can hold your employer liable.
Employer fails to correct a hostile work environment
Employers can also be liable when there is a hostile work environment, but only when the employer failed to take action.[25] The steps that your employer has to take depends on who is causing the offensive work environment.
If your supervisor is creating the hostile working environment, you can hold your employer liable unless it can show that:
- it took reasonable care to prevent the problem and then quickly correct it, or
- you did not use the company’s internal reporting or remedy requirements.[26]
For example: The employer was liable when it did not disseminate sexual harassment policies among its employees and did not have a procedure for victims to report harassment to anyone other than their supervisors, such as a human resources department.[27]
If coworkers are responsible for the bad work environment, your employer can be held liable if:
- it knew or should have known of the harassing behavior, and
- failed to take adequate corrective action.[28]
For example: The employer was held liable when a female employee reported being harassed at a work site. When she asked to not be sent back to the site, her supervisor laughed and sent her back.[29]
[1] Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).
[2] See, e.g., Mogilefsky v. Superior Court, 20 Cal.App.4th 1409 (1993).
[3] Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
[4] See, e.g., Priest v. Rotary, 634 F.Supp. 571 (N.D. Cal. 1986).
[5] Burlington Industries, Inc. v. Ellerth, supra note 3.
[6] Meritor Savings Bank, FSB v. Vinson, supra note 1.
[7] Redd v. New York Division of Parole, 678 F.3d 166 (2d Cir. 2012).
[8] Faragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).
[9] Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).
[10] See Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 (1st Cir. 2002).
[11] Rosario v. Department of the Army, 607 F.3d 241 (1st Cir. 2010).
[12] 42 USC 2000e-2(a) and Meritor Savings Bank, FSB v. Vinson, supra note 1.
[13] Meritor Savings Bank, FSB v. Vinson, supra note 1.
[14] Harris v. Forklift Systems, Inc., supra note 9.
[15] Clark County School District v. Breeden, 121 S.Ct. 1508 (2001).
[16] EEOC, “Sexual Harassment in Our Nation’s Workplaces,” EEOC Data Highlight (April 2022, No. 2).
[17] Lilia M. Cortina and Jennifer L. Berdahl, The Sage Handbook of Organizational Behavior (2008) (page 485).
[18] 42 USC 2000e-5.
[19] 42 USC 1981A.
[20] 42 USC 1981A(b)(3).
[21] 42 USC 2000e(b).
[22] 42 USC 2000e-5(g).
[23] Facts from Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559 (8th Cir. 1992).
[24] Vance v. Ball State University, 133 S.Ct. 2434 (2013).
[25] Burlington Industries, Inc. v. Ellerth, supra note 3.
[26] Same.
[27] Facts from Faragher v. City of Boca Raton, supra note 8.
[28] Burlington Industries, Inc. v. Ellerth, supra note 3.
[29] Facts from Watson v. Blue Circle, Inc., 324 F.3d 1252 (11th Cir. 2003).
