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Home
>>
Employment Law
>> Sexual
Harassment >> How a court reviews a
claim
Attorney
Representation in San Francisco, California since
1989
SAN
FRANCISCO SEXUAL HARASSMENT ATTORNEY
Sexual
Harassment
 How
does a court review a sexual harassment claim?
Definition
In
the federal context, sexual harassment is considered
to be a form of sex discrimination under Title
VII of the Civil Rights Act of 1964. Accordingly
to the Equal Employment Opportunity Commission
(EEOC) "unwelcome sexual advances, requests
for sexual favors, and other verbal or physical
conduct of a sexual nature constitutes sexual
harassment when submission to or rejection of
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."
- There
are two different types of sexual harassment
claims, although the manner in which a court
will distinguish between the two for purposes
of deciding whether harassment has occurred
has become blurred in recent years:
- Quid
Pro Quo: Sexual harassment that occurs when
a supervisor or one in an authority position
requests sex, or a sexual relationship,
in exchange for not firing or otherwise
punishing the employee, or in exchange for
favors, such as promotions or raises.
- Hostile
Work Environment: Sexual harassment that
occurs through the presence of demeaning
or sexual photographs, jokes or threats.
The inappropriate behavior or conduct must
be so pervasive as to, as the name implies,
create an intimidating and offensive work
environment.
- Each
state is different with regard to protections
against sexual harassment. For example, Alabama
allows for an employee to sue an employer for
sexual harassment based on a theory of invasion
of privacy. Vermont law, in comparison, requires
every employer to adopt a policy against sexual
harassment. Other states have no specific law
prohibiting or punishing sexual harassment.
Applying
the Definition
- While
it is easy to define sexual harassment, it is
very difficult to apply that definition to a
set of particular facts. Court opinions can
seem inconsistent about whether sexual harassment
has occurred, sometimes deciding differently
in cases with very similar facts particularly
in hostile work environment cases where it is
more difficult than in quid pro quo situations
to prove that harassment occurred.
Example:
Courts may disagree on whether the posting
of one piece of pornographic or sexually offensive
material is sufficient to create a hostile work
environment.
Example:
One court may hold that an unwelcome
advance (such as an employee asking another coworker
out on a date) does not constitute sexual harassment
because it did not rise, in that particular case,
to the level of pervasive behavior. In another
case, however, the court may rule that based on
the specific facts of that situation, a rebuffed
request for a date could constitute sexual harassment.
- The
U.S. Supreme Court has held that employers may
defend themselves in hostile work environment
cases brought against them for actions of a
supervisor or managerial-level employee by arguing
that they took reasonable steps to prevent sexual
harassment and made efforts to correct harassing
behavior. Employers may also argue that they
are not liable if an employee did not take advantage
of available reporting or remedial measures
to complain about incidents of sexual harassment
Factors
for Review
Factors
a court will consider in hostile work environment
cases include:
- Frequency
of the alleged inappropriate behavior.
- Severity
of the behavior.
- Conduct
of the victim.
- Context
of the alleged harassment.
- Size
of the employer's business.
- Nature
of the employer's business.
- In
a hostile work environment claim, whether a
reasonable person in the position of the plaintiff
would have thought the environment to be hostile.
Note:
If the alleged victim willingly participated in
sexual banter or risqué jokes, it will
be more difficult for them to prove that they
have actually been harassed.
If
you are a victim of sexual harassment in the workplace,
there are steps that you can take to stop the
problem and protect your right to a legal remedy.
Talk to a top San Francisco criminal attorney
to discuss the facts of your particular situation
and ensure that your legal rights are protected.
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