What is sexual Harassment in the Workplace?

Sexual harassment is a form of sex discrimination that violates the Nebraska Fair Employment Practice Act and Title VII of the Civil Rights Act of 1964.  

Sexual harassment is unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that may directly or indirectly affect an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

  • Sally’s boss told her that she would get the promotion if she had sex with him – that is sexual harassment!
  • Jan is one of only a few females that work as delivery driver.  Employees are constantly putting sexual toys, nude pictures, and other sexually suggested items in her truck – that is sexual harassment!
  • Michelle’s co-worker is always commenting on her physical appearance.  He is constantly “bumping” into her private parts – that is sexual harassment!  

Are only women victims of sexual harassment in the workplace?

No. While approximately 80% of workplace sexual harassment claims are filed by women, they are not the only victims of sexual harassment.  Both the victim and the harasser can be either a woman or a man, and the victim and the harasser can be the same sex.

  • Frank constantly makes derogatory comments about his male subordinate, using sexually insulting language or calling him a girl, princess, and sissy -that is sexual harassment! 

How does sexual harassment present itself in the workplace?

  • Quid pro quo harassment, where a supervisor, boss, superior, etc. offers some benefit, like a promotion or a raise, in exchange for sexual favors. 
  • Hostile work environments, where the conduct is severe enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.  A boss or supervisor can be responsible for creating such an environment, as well as a co-worker.

What are examples of a hostile work environment?

Offensive conduct must be unwelcomed and may include:

  • Offensive jokes; 
  • Slurs, epithets or name calling; 
  • Physical assaults or threats; 
  • Intimidation, ridicule or mockery; 
  • Insults or put-downs;
  • Offensive objects or pictures; 
  • Interference with work performance; and
  • Other conduct that is reasonably considered outrageous behavior.

What is not considered sexual harassment?

Minor off-colored jokes, annoyances, and random or very infrequent incidents (unless extremely serious) generally do not meet the criteria for being severe enough to be considered sexual harassment in a court of law. 

Is my employer always liable if I have been sexually harassed?

Not always.  An employer is liable if a supervisor created and/or took part in harassing the victim.  However, when the harassment is created by a colleague then an employer is only responsible in three situations. 

  • When the harassed employee makes complaint to a supervisor or HR, and the employer ignores it and takes no corrective action to address the bad behavior.
  • When the employer has no policies in place discussing what sexual harassment is and who to report the bad conduct to if the employee experiences or witnesses sexual harassment in the workplace.
  • When harassment was so widespread that the employer knew or should have known about the conduct but chose to ignore it.

What should an employee do if he or she is suffering from or is aware of a hostile work environment?

First, if the employee feels safe enough, he or she should tell the harasser to stop.  The employee should make it clear that the conduct is not welcomed.  As soon as practical, the employee should report the hostile work environment conduct.  Ideally, the employer will have a policy on how to report a hostile work environment, and the employee should try to follow the employer’s procedures.  Also, employees may notify their supervisors of their complaint and/or lodge a complaint with the employer’s human resources department.

What should an employer do once aware of a hostile work environment complaint?

An employer should take prompt action and investigate the legitimacy of the claim without making any preconceived judgments or conclusions.  In some instances, an employer may wish to employ outside counsel to conduct the investigation.  Both the alleged victim and the alleged harasser should be interviewed as part of the investigation as well as any identified witnesses. Individuals should be reminded that it is prohibited to retaliate against an employee for having made a complaint.  Employees should also be reminded that they are not to interfere with the investigation and that providing knowingly false information could lead to disciplinary action.

Employees should be told that the investigator will do his or her best to keep matters as confidential as possible.  However, expecting complete confidentiality is not realistic.  

After conducting an investigation, a determination should be made as to whether any corrective action is necessary.  The employee who lodged the complaint should be told when the investigation is completed and whether any corrective action was taken as a result.  However, the employee is not entitled to know what specific corrective action was taken, and the employee does not get to decide whether the action taken is sufficient. 

Finally, an employer may wish to reevaluate its training and education and look for ways to help prevent future issues. 

If you believe you have been a victim of sexual harassment in the workplace, or if you are an employer looking for guidance, you should contact an experienced attorney.