Sexual harassment in the workplace is discrimination on the basis of sex and is a violation of Title VII of the Civil Rights Act of 1964. Although sexual harassment is not specifically mentioned in Title VII, it is broadly defined by Equal Employment Opportunity Commission (EEOC) guidelines as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to the conduct is made a condition of employment;
- Submission to the conduct is used as a basis for employment decisions; or
- The conduct constitutes a hostile work environment.
Courts generally divide sexual harassment claims into two categories: (1) quid pro quo harassment and (2) hostile work environment harassment. Each category requires a different type of proof. However, it is not always possible to neatly fit a particular set of facts into only one of the two categories.
Quid Pro Quo Harassment
Quid pro quo, which literally means "one thing for another," describes harassment involving the granting or denying of a tangible employment benefit based upon an employee's response to an unwelcome sexual advance. This type of harassment may be shown where the rejection of a supervisor's unwelcome sexual advances results directly in an adverse employment action. Mere threats will not provide the basis for a finding of quid pro quo harassment.
In order to be unlawful, the adverse employment action needs to significantly change the employee's work situation. This can include an undesirable transfer, a pay cut, termination of employment, or the denial of a promotion. The alteration of a job title alone, so long as it does not qualify as a demotion, would likely not qualify as an adverse tangible employment action.
Hostile Work Environment Harassment
Under EEOC guidelines, hostile work environment harassment is harassment that substantially interferes with an individual's work performance or creates an "intimidating, hostile, or offensive working environment.'' Unlike quid pro quo harassment, an employee seeking to prove a hostile work environment need not show that he or she was denied a tangible job benefit. Instead, he or she must show that the sexual harassment was "sufficiently severe or pervasive" to alter the conditions of employment and create an "abusive working environment."
The Supreme Court has adopted a totality of the circumstances test to determine whether certain harassment has created a hostile work environment. In analyzing the question, the following factors are to be determined:
- the frequency of the conduct;
- the severity of the conduct;
- whether the conduct is physically threatening or humiliating or whether it is merely an offensive utterance; and
- whether the conduct unreasonably interferes with the employee's work performance.
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