Sexual harassment is unwelcome conduct of a sexual nature in the workplace that is severe or pervasive enough to create a hostile work environment or to condition a job benefit on submission to sexual demands. Title VII of the Civil Rights Act of 1964 prohibits this conduct, and the Equal Employment Opportunity Commission (EEOC) enforces it at the federal level. In Maryland, employees are also protected under State Government Article Section 20-602 of the Annotated Code of Maryland. The behaviors that qualify fall into two recognized categories, quid pro quo and hostile work environment, and they appear in physical, verbal, non-verbal, and digital forms.
In other words, a boss who is prone to harassing his female employees is likely aware that if they are too obvious about it, their victim may report them. So they switch gears and downshift into less obvious behavior that leaves the victim uncertain as to whether or not illegal harassment even happened. If you wonder if the uncomfortable behavior you are experiencing at work is considered harassment, the discussion below may shed some light on the topic for you.
Key takeaways
- Sexual harassment under Title VII falls into two categories: quid pro quo and hostile work environment.
- Behaviors that can qualify include physical contact, verbal conduct, non-verbal gestures, and digital communications.
- Conduct must be unwelcome and severe or pervasive enough to alter working conditions.
- A single severe incident, like sexual assault or a quid pro quo demand, can support a claim on its own.
- Maryland employees can file with the EEOC, the Maryland Commission on Civil Rights, or both, within statutory deadlines.
Two Basic Types of Sexual Harassment Behaviors
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as requests for sexual favors, uninvited and unwelcome sexually oriented advances, or any unwelcome conduct of a sexual nature within the workplace.
Having sexual thoughts about a co-worker alone is not harassment. For it to be considered harassment, the behavior must be both severe and pervasive.
There are two broad categories within which illegal sexual harassment behaviors fall.
Quid Pro Quo
Quid pro quo sexual harassment occurs when a supervisor, manager, or other person with workplace authority conditions a job benefit on the employee’s submission to a sexual request. The benefit can be a promotion, raise, favorable assignment, continued employment, or any other tangible employment action. A single incident can support a claim, because the harm is the abuse of authority itself rather than a pattern of behavior.
Hostile Work Environment
This type of harassment can be far less obvious than quid pro quo.
A hostile work environment exists when an employee is subjected to unwelcome conduct of a sexual nature that is severe or pervasive enough to alter the terms and conditions of employment, judged by the reasonable person standard. The conduct does not need to come from a supervisor. Coworkers, clients, and vendors can all create this kind of environment, and the employer can be held liable if it knew or should have known about the behavior and failed to take corrective action. A single extreme incident can qualify, but most hostile work environment claims involve a pattern of conduct that builds over time.
Physical Harassment
Physical sexual harassment is unwelcome touching, body contact, or proximity that has a sexual character. Examples range from clearly unlawful conduct like unwanted kissing, groping, or sexual assault, to subtler conduct like uninvited shoulder massages, lingering too close, blocking paths, or repeated brushing against the body. Routine workplace contact like a handshake or a brief tap on the arm does not qualify on its own.
But what about the supervisor who routinely stops to linger over your desk and massage your shoulders? Or whisper into your ear on a regular basis? If these actions are unwelcome and make you uncomfortable, they can constitute sexual harassment. Repeatedly touching, pinching, cornering you, or lingering too closely to your body can all constitute sexual harassment. Whereas more innocuous touching like high-fives, handshakes, or an occasional light touch on the arm or shoulder probably do not comprise harassment.
Conduct is considered sexual harassment if it is unwanted, improper, or offensive; if acceptance or refusal influences employment decisions; or if it creates an intimidating, hostile, or humiliating work environment.
Verbal Harassment
Verbal sexual harassment is unwelcome spoken or written speech of a sexual nature directed at, or made in the presence of, an employee. The behavior does not need to involve direct propositions to qualify. Repeated comments, jokes, innuendos, and questions about a person’s sex life or appearance can all support a hostile work environment claim when they are pervasive enough. These types of verbal behaviors qualify as well:
- Calling an adult a girl, boy, hunk, babe, honey, stud, sugar, or any unprofessional (and often derogatory) pet name;
- Making repeated comments on someone’s appearance, clothes, hair, or physique;
- Sexual innuendos;
- Asking about sexual preferences, history, fantasies, and the like;
- Repeatedly requesting or pressuring someone for dates;
- Telling sexually oriented jokes and stories;
- Veering discussions to the topic of sex;
- Disseminating rumors about someone’s sex life or preferences; and
- Making any sexually charged noises like whistling, kissing sounds, smacking lips, or howling.
Basically, any sexually charged repetitive verbal behavior can be sexual harassment.
Non-Verbal Harassment
Nonverbal sexual harassment includes actions that make someone uncomfortable without spoken words.
Examples are:
- Staring at someone or repeated lingering glances;
- Looking a person “up and down” in a suggestive manner;
- Following someone around the office or workplace;
- Blocking someone’s path;
- Inappropriate staring;
- Licking lips in a provocative way;
- Winking suggestively;
- Blowing kisses;
- Giving intimate, inappropriate gifts, or repeated gifts for no apparent reason;
- Making suggestive gestures;
- Showing someone sexually suggestive or explicit visual images; and
- Leaving inappropriate and suggestive notes.
Is Looking at Someone Harassment?
Persistent leering or staring can be sexual harassment or evidence supporting other forms. Not all looking qualifies as leering or staring. Leering involves eye movement and facial expressions suggesting sexual interest.
Generally, any non-verbal communication that is sexually charged and makes the recipient uncomfortable constitutes non-verbal sexual harassment behaviors.
Digital Sexual Harassment
Digital sexual harassment is unwelcome sexual conduct delivered through email, text messages, instant messaging, social media, or any other electronic channel connected to the workplace. Courts treat digital harassment the same as in-person harassment when the messages are sent by a coworker or supervisor and affect the employee’s working conditions. The harasser does not need to be physically present, and the messages do not need to be sent during work hours, for the conduct to qualify.
For example, email and texting give us the ability to send links to one another. This means that a perpetrator of sexual harassment can now send someone links to sexually charged material any time of the day or night. They don’t even have to be at work or in the victim’s presence to harass employees or coworkers. Or worse, they can send their targets nude photos, sexually coarse jokes, sexual stories, or even pornographic material whenever the mood strikes. All of these forms of digital communications are sexual harassment if the recipient does not welcome them.
Let Us Help
The professionals at the Smithey Law Group are passionate about protecting your rights in the workplace. If you feel uncomfortable with someone’s behavior at work and are uncertain if it constitutes sexual abuse and harassment, you can make an appointment to discuss it with one of our knowledgeable attorneys. They can assess the facts and circumstances you are confronted with at work and advise you on whether sexual abuse and harassment are occurring and what to do about it next. Likewise, if you are an employer who is not sure about actions happening in your company, we welcome a chance to clarify your legal rights and responsibilities. Call us at 410-919-2990 or contact us online today to set up a meeting where we can discuss your options.
