With all the news stories about sexual harassment allegations in Hollywood, the tech industry, and the media, it may seem like the only viable harassment claims are those with blatant evidence and, in some cases, allegations of sexual assault.

The law, however, protects against many different kinds of harassment, and simply because your case does not involve sexual assault or being propositioned does not mean you should have to suffer through harassing conduct on the job.

Cases involving groping, sexual assault, and quid pro quo threats (“have sex with me or you won’t be hired”) are still an unfortunate reality for too many employees, and these cases can present strong, clear evidence of illegal sexual harassment.

But less extreme, though still noxious, types of cases can also rise to unlawful sexual harassment; for example, claims involving verbal harassment, lewd text messages/jokes, and retaliatory acts can violate Title VII of the 1964 Civil Rights Act and other anti-discrimination laws.  And it’s important to know how to protect your legal rights if this is happening to you on the job.

Less severe but still toxic sexual harassment

The Equal Employment Opportunity Commission (EEOC) notes that sexual harassment can occur in a variety of ways, including:

• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct;

• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

In general, two forms of sexual harassment are evaluated by federal courts.  The first is “quid quo pro” harassment where a plaintiff shows that a tangible employment action (for example, termination, demotion, pay cut) “resulted from a refusal to submit to a supervisor’s sexual demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).

The second form of sexual harassment is “hostile work environment” harassment, in which conduct that does not result in a tangible employment action is nevertheless so “severe or pervasive” that it creates an abusive working environment. Ellerth, 524 U.S. at 754.

To prove a hostile work environment/harassment claim, an employee must prove:

• she was a member of a protected class;

• she was subjected to unwelcome sexual harassment;

• the harassment was based on sex;

• the harassment unreasonably interfered with her work performance; and

• the employer knew or should have known about the harassing conduct but failed to take corrective action

Note:  some federal courts use the term “tangible employment action” instead of “quid pro quo” to describe harassment that results in something like a termination, demotion, or pay cut.  See, e.g., Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 n. 4 (11th Cir. 2004).

Examples of sex harassment that do not involve physical touching or quid pro quo propositions

In Abeita v. TransAmerica Mailings, Inc., the Sixth Circuit Court of Appeals found that the employee (Abeita) had presented enough evidence so that a jury should decide if unlawful sexual harassment occurred.  The allegations at issue included:

• the President of the company asking the plaintiff Abeita, “oh, yellow dress and yellow shoes, yellow underwear too?”

• routine and continuing statements from the President about women other than Abeita, such as:

  • “I’d really like to lay her”

  • that a particular model looked “hot,” had a sexy body, and that the supervisor would like to “warm her oven;”

  • his sexual interest in other female employees

• the President arranged photo shoots for models simply so he could meet the models in person;

• degrading gender stereotyping of other female employees, including about their weight and appearance

Of course, the way in which courts determine the seriousness of the harassment “is not subject to any precise mathematical test.” Armstrong v. Whirlpool Corp., 363 Fed.Appx. 317, 324 (6th Cir. 2010).  And, on the one hand, Title VII is not a “code of workplace civility” and “[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to a hostile work environment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

At the same time, gender based comments and remarks will weigh in favor of a pervasiveness finding when they are “commonplace, ongoing, and continual” in nature.

Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998).

Importantly, sex-based conduct and comments “need not be directed at a plaintiff in order to constitute conduct violating Title VII,” although courts generally consider actions specifically directed at a plaintiff to be more severe. Abeita, 159 F.3d at 251.

Takeaways

The universe of actionable sexual harassment cases is broader than the small number of cases that actually generate headlines in the news.  So if your boss or coworkers are, for example, routinely:

• making derogatory or sexual comments to you (whether the comments are about you directly or other women);

• sending you unwanted texts or emails of a sexual or misogynistic nature;

• ogling female employees; and/or

• other similar conduct

then you you should make clear that you disapprove of their conduct and find out more information about how to protect your legal rights.