Sexual harassment, like other forms of discrimination or harassment on the basis of race, national origin, age, or disability, is barred by a federal law called Title VII. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.
Examples of sexual harassment include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct 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. See the EEOC website for more details.
The first step is to determine the type of harassment. Federal law recognizes two basic types of sexual harassment: hostile work environment and quid pro quo.
Hostile Work Environment
The first type of sexual harassment is called hostile work environment sexual harassment. This form of harassment occurs where an employee, because of his or her gender, is subjected to an atmosphere of unwelcome conduct (this can be words or actions) that unreasonably interferes with the employee's work performance or otherwise creates an intimidating, hostile, or offensive work environment.
Quid Pro Quo
The second form of sexual harassment is called quid pro quo sexual harassment. This form of sexual harassment occurs where an employee is required to submit to unwelcome sexual conduct as a condition of his or her employment, or in order to gain some tangible job benefit. For instance, if a superior demands that you have sex with him in order to be considered for a promotion then he would be guilty of quid pro quo sexual harassment.
Necessary Elements Part 1
Generally, in order to violate the law, the sexual harassing behavior must establish certain criteria. First, the sexual harassment must be unwelcome and offensive to the complaining party/employee. Therefore, if the complaining party/employee has participated in telling the sexual jokes that she is complaining about or has engaged in a consensual sexual relationship with the co-worker she is complaining about, this evidence will be used by the employer to argue that the harassment was welcome.
Necessary Elements Part 2
Second, the complaining party/employee must show that the employer knew or should have known of the sexual harassment. This does not mean that the complaining party/employee must have complained about the sexual harassment in order to recover. For example if the harassment occurred to other employees in the past or the harassment occurred in front of supervisors. etc. that may be sufficient notice to the employer.
Necessary Elements Part 3
Third, the employee must establish that the employer knew or should have known about the sexually harassing behavior. This is often done by following the employers sexual harassment policy in your employee handbook.