Sexual harassment is all over the news. Harvey Weinstein, the cinematic giant, has been exposed as a loathsome lothario, a serial abuser of women, and a poster child of male privilege and abuse in the movie industry. Weinstein and sexual harassment are now inextricably linked in the public imagination, and, it seems, never the twain shall part.
Sexual harassment is a form of sex discrimination that is prohibited under both state and federal law. The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . [that] explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.”
What Constitutes “Unwelcome” Behavior?
There is no requirement that a victim of harassment confront the harasser directly. Courts have found behavior to be “unwelcome” in a variety of situations even where a victim does not reject or formally complain about the harasser. For example, evidence that the victim generally tried to avoid the harasser or consistently failed to respond to suggestive comments may be sufficient to establish that the conduct was unwelcome. In addition, New York and Second Circuit law protects victims of sexual harassment who submit to sexual advances in order to avoid changes in their employment status. An employee may therefore bring a sexual harassment lawsuit even where the employee consented, agreed to, or participated in certain conduct.
Who is Liable?
Employers have a duty to provide employees with a safe workplace and can be held vicariously liable for the sexual harassment of its employees if it knew or should have known about the harassment or if the harasser is a supervisor. Therefore, a sexual harassment victim can bring a claim based on the unwelcome sexual conduct of their supervisor, a co-worker, an agent of the employer, or, in some cases, a non-employee.
Sexual Harassment Claims: Quid Pro Quo and Hostile Work Environment
Sexual harassment lawsuits are typically brought as quid pro quo and/or hostile work environment claims.
(1) Quid pro quo (“something for something”) harassment occurs when some type of employment benefit (or the avoidance of adverse employment action) is the made contingent on participating in sexual activity. The Hollywood “casting couch” is a prime example. When Harvey Weinstein demands of an actress that she grant him sexual favors as the price for winning a movie part, he is engaging in classic quid pro quo sexual harassment. And a supervisor who promises to issue an employee a positive performance review in exchange for sexual favors—or threatens to issue a negative performance review if the employee does not agree to participate in sexual activity—can be liable for quid pro quo sexual harassment. An employee may bring a quid pro quo sexual harassment claim where the employee rejects unwelcome sexual advances and suffers a negative employment consequence as a result or where an employee submits to unwelcome sexual advances in order to avoid a negative employment consequence. There are many examples of an adverse employment action that gives rise to a quid pro quo sexual harassment claim. Termination, denial of a promotion, denial of a raise or docking of pay, reassignment or transfer resulting in a change in the employee’s duties, the withholding or withdrawal of benefits, or issuing poor performance reviews all constitute adverse employment action.
(2) A sexual harassment claim under the hostile work environment theory occurs when unwelcome sexual conduct unreasonably interferes with the plaintiff’s work performance or creates an intimidating, hostile, or offensive working environment. (See, Harvey Weinstein, passim). Notably, sexual harassment under a hostile work environment theory is not limited to inappropriate sexual advances. Any unwelcome verbal or physical behavior that creates a hostile work environment may be an actionable sexual harassment claim. For example, offensive comments about women—even comments that are not of a sexually suggestive nature—may give rise to a sexual harassment claim. And a hostile work environment claim for sexual harassment may also exist where male supervisors or colleagues commonly yell at, question the abilities, or undermine the authority of female employees.
Examples of Sexual Harassment
Sexual harassment comes in many forms, including:
- Unwelcome sexual advances or requests for sexual favors
- Deliberate touching or physical contact
- Sharing sexually inappropriate images or videos with co-workers
- Sending emails, letters, or telephone calls, or text messages of a sexual nature
- Telling lewd or sexual jokes
- Making sexual comments about appearance, clothing, or body parts
- Referring to an employee with inappropriate language (such as “doll,” “babe,” or “honey”)
- Telling lies or spreading rumors about a person’s private sex life
- Making sexual gestures (such as winking)
- Inappropriate questions of a sexual nature (such as questions about someone’s sexual history)
- Gender-based animosity or offensive comments