Sexual Harassment in the Office
When does flirting at work cross the line into sexual harassment?
Posted Aug 06, 2018
A 2018 survey by Vault.com suggests that over 50% of employees have participated in at least one office romance, with “random hookups” being the most common type of relationship. However, the #MeToo movement has shifted the terrain and placed a higher level of scrutiny upon such relationships. While many office relationships proceed without incident, some efforts to engage in these types of relationships deteriorate into allegations of sexual harassment.
Types of Sexual Harassment
Sexual harassment at work is prohibited as one kind of discrimination under Title VII of the Civil Rights Act of 1964, and similar state and local laws. Sexual harassment can either be quid pro quo, or hostile work environment.
Quid Pro Quo
Quid pro quo harassment applies when a supervisor seeks sexual favors in return for a job benefit or to avoid a job detriment. For example, the Ninth Circuit Court of Appeals “ha[s] long recognized that a supervisor's demand for sexual favors accompanied by a threat of discharge represents archetypical quid pro quo harassment.” Holly D. v. California Inst. of Tech., 339 F.3d 1158, 1169 (9th Cir. 2003). Furthermore, to be harassment, the action need not necessarily cause economic harm to the employee. As the Ninth Circuit has held:
It is true that in the more common “tangible employment action” cases, a supervisor demands sexual favors and, when refused, punishes his victim by an employment action that causes economic harm—the employee is fired or demoted as a consequence of her refusal to have sex with her supervisor. See Ellerth, 524 U.S. at 762, 118 S.Ct. 2257. The injury in such cases is clear. When, however, the victim submits to her supervisor's demands and is hired, promoted, not fired, or not demoted because she has been successfully coerced into engaging in sexual acts with him, she is also directly injured by the employment action. The injury in such cases—the physical and emotional damage resulting from performance of unwanted sexual acts as a condition of employment—is as tangible as an injury can be.
Holly D., 339 F.3d at 1171.
Hostile Work Environment
Hostile work environment harassment on the basis of sex occurs when an employer's work environment is so offensive or intimidating on the basis of sex that it alters the conditions of employment and makes the work environment abusive. The standard an employee must meet to prove hostile work environment harassment is demanding. Among other things, the employee must show that the harassment was severe or pervasive enough to change the conditions of employment and create an abusive environment, judged by both an objective standard and a subjective standard. Generally, simple unrequited requests to begin or reignite a romantic relationship will not meet the standard.
Conduct Not Constituting Sexual Harassment
Based on the legal principles above, the following examples would most likely not constitute sexual harassment:
- An employee politely asks a colleague out on a date. After the colleague refuses, the employee accepts the refusal and does not continue to pressure the colleague.
- A supervisor that tells a subordinate to dress more professionally, in accordance with the company’s policy and well-documented dress code.
- A consensual sexual relationship between colleagues (although if the colleagues act inappropriately in the workplace, this could be construed as potentially rising to the level of sexual harassment to other colleagues).
- One sexual joke or off-hand remark on its own.
- Common remarks on things such as hairstyle and dress.
Many companies enforce internal policies that are stricter than those required by law. Before acting or speaking, it is always best to ascertain what is considered acceptable in your specific situation. And when there is doubt, it is always best to err on the side of caution rather than risk making a colleague feel uncomfortable.
Disclaimer: This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this blog or any of the e-mail links contained within the site do not create an attorney-client relationship between the author and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of any law firm or Psychology Today.
Romance in the Workplace, Practical Law Practice Note 0-502-6127
Vault Careers, “The 2018 Vault Office Romance Survey Results,” February 12, 2018, available at http://www.vault.com/blog/workplace-issues/2018-vault-office-romance-survey-results.
Katie Johnston, “Dating a co-worker? You may need a love contract,” Boston Globe, February 13, 2018, available at https://www.bostonglobe.com/business/2018/02/13/dating-coworker-you-may-need-love-contract/8j1txuVwARkrr3J7tOGsKM/story.html.