The Equal Employment Opportunity Commission's (EEOC) guidelines
recognize two different types of sexual harassment, the quid pro quo
type and the hostile environment type.
A. Quid pro quo harassment occurs when submission to unwelcome sexual
conduct is made a term or condition of an individual's employment
[29 CFR 1604.11(a)(2)]. This is the easiest form of sexual harassment
to define and identify, although, due to the private nature of conversations
which form the basis for the charge, the most difficult to establish
through conclusive, third-party proof.
B. Hostile environment harassment exists if unwelcome sexual conduct
"unreasonably interferes with an individual's job performance"
or creates an intimidating, hostile or offensive work environment
[29 CFR 1604.11(a)(3)]. As might be expected, the EEOC's regulation
is very open-ended and, therefore, it is difficult to define the full
range of specific behaviors which may constitute sexual harassment.
In these cases, it is essential that a detailed and elemental analysis
of the conduct complained of be performed against the individual ingredients
contained within the cited section.
(1) Analysis should address the following:
(a)
Was the conduct complained of that of an employee or supervisor
of the organization employing the complainant?
(b)
Was conduct complained of unwelcome, as that term has been defined
by the courts?
(c)
Was conduct complained of sexual in nature?
(d)
Did conduct complained of interfere with the complainant's
job performance?
(e)
Was the interference arising out of conduct complained of unreasonable
in degree?
(2) A hostile environment claim can be brought by an employee who is
offended by the overtly sexual nature of a workplace.
(3) A hostile environment claim can also be brought by an employee who
loses job opportunities or benefits to individuals who obtain those
opportunities or benefits by submitting to sexual advances or requests
for sexual favors [29 CFR 1604.11(g)]. The EEOC takes the position
that "isolated incidents of preferential treatment based on consensual
romantic relationships" are not unlawful. However, if favoritism is
widespread it can constitute hostile environment harassment. In addition,
an employee denied benefits which are conferred on a paramour can
claim that he/she was harmed by the sexual overtures made to the paramour
[EEOC Policy Guidance on Employer Liability for Sexual Favoritism
(1/12/1990)].
(4) The policy guidance directs that the circumstances must be viewed
as a whole.
(a)
If there is an indication of unwelcomeness, the charging party's
claim will be strengthened if a contemporaneous complaint of harassment
was made.
(b)
Use of sexually explicit language does not negate a claim that
sexual conduct is unwelcome, but it may be considered in deciding
whether conduct was unwelcome.
(c)
Sexually aggressive behavior such as discussions of sexual fantasies
and inquiries into the sex lives of coworkers may indicate welcomeness.
(d)
General character evidence and evidence of sexual behavior with
individuals other than the harasser is given little weight in determining
welcomeness.
(5) When is an environment hostile under the EEOC's guidelines?
The March 19, 1990, Policy Guidance also discusses identification
of a hostile environment. In order to constitute harassment, behavior
must be sufficiently severe that it alters the terms of employment.
"Sexual flirtation or innuendo even vulgar language that is trivial
or merely annoying," is insufficient.
(6) Unless conduct is quite severe, isolated incidents of sexual conduct
or statement do not create a hostile environment. Generally a pattern
of conduct is required.
The following are defenses to claims of sexual harassment:
A. The sexual overtures were not unwelcome.
B. The behavior was not pervasive.
C. The conduct was not sexual harassment. Using the reasonable person
standard, this defense can be made out if the behavior challenged
is such that a reasonable person would not find it sexually offensive.
D. The employer is not liable for the conduct alleged. In hostile environment
cases, an employer can avoid liability for the acts of employees and
supervisors if the employer has a proper policy prohibiting sexual
harassment in place and takes immediate, effective action to stop
harassment and to prevent further instances once the employer learns
of harassment.