Sexual Harassment in the Workplace

Michael Major

Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964. Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s gender. For example, it is illegal to harass a woman by making offensive comments about women in general.

Clearing up Some Common Misconceptions

  • Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be of the same sex.
  • The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
  • Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
  • Unlawful sexual harassment may occur without economic injury to, or discharge of, the victim.

Employer Liability/Responsibility

Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.

The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and/or loss of wages. If the supervisor’s harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: 1) it reasonably tried to prevent and promptly correct the harassing behavior; and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.

Employers are encouraged to take steps necessary to prevent sexual harassment from occurring and they should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training to their employees, establishing an effective complaint or grievance process, and taking immediate and appropriate action when an employee complains of sexual harassment

Protecting Yourself from Sexual Harassment

Whether you are male or female, you have the right to work in an environment free from harassment. If you experience or witness sexual (or other) harassment in the workplace, please feel free to contact us using the form here.

If you have any questions regarding this subject or this posting, please contact James E. Miller (jmiller@sfmslaw.com) or Laurie Rubinow (lrubinow@sfmslaw.com). We can also be reached toll-free at (866) 540-5505.

Shepherd, Finkelman, Miller & Shah, LLP, is a law firm with offices in California, Connecticut, Florida, New Jersey, New York and Pennsylvania. SFMS also maintains affiliate offices in London, England, and Milan, Italy, and is an active member of Integrated Advisory Group (www.iag.global), which offers our firm the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.