Sunday, November 6, 2011

What is Sexual Harassment?

This week, I'm writing a series of posts to address some sexual harassment issues that have popped up in the mainstream media lately. The issues arise from allegations made against Herman Cain. I want to emphasize that to date I have no idea what the actual allegations even are, let alone whether they are true. My purpose is not political, but informative.

Let's start with the most basic question: What is sexual harassment? Some recent commentary has suggested that there's a really low bar. A guy says something innocent and a woman takes offense... voila, sexual harassment! In fact, sexual harassment is pretty difficult to establish.

There are two main types of sexual harassment. The first is quid pro quo, or "this for that" harassment. Trading workplace favors for sexual favors, or imposing workplace penalties for withholding sexual favors. This is the creepy manager abusing his position to hit on subordinates.

Then there's "hostile work environment" harassment. Per the United States Supreme Court:
[S]exual harassment so "severe or pervasive" as to " 'alter the conditions of [the victim's] employment and create an abusive working environment' " violates Title VII . . . . [T]o be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.
Faragher v. City of Boca Raton, 524 U.S. 775 (1998). The Supreme Court has repeatedly explained that:
Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." A recurring point in these opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code."
Id. I think that's a lot harder than some commentators acknowledge.

In short, sexual harassment has a pretty high bar. Of course, that's a high bar for a successful lawsuit. Next post: How hard is it to get rid of baseless sexual harassment claims?

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.