The issue of harassment, particularly the harassment of women in public places, commonly known as “street harassment,” has received considerable attention in recent months. Some responses to this discussion have, unfortunately, questioned the veracity of the nearly-countless stories of harassment and claimed confusion regarding what behavior does and does not constitute harassment. In public, the rule ought to be as simple as “If the recipient says it is harassment, then it is harassment.” Under federal, state, and city employment laws, however, “harassment” has a specific legal meaning with significant consequences, so it is worth reviewing how the term is defined.
A video posted on YouTube in October 2014 documented the harassment a woman experienced walking around New York City over a 10-hour period. The comments she received ranged from “hello” to less polite statements or inquiries. Few of the remarks would constitute harassment by themselves, but taken as a whole, the effect could be overwhelming. In the workplace, a person may experience conduct from a supervisor, co-worker, or other person that, taken in isolation, might not seem so bad, but that has a similar effect over time. This, in addition to more obvious examples like direct sexual overtures or demands, may constitute sexual harassment as defined by Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission (EEOC)
EEOC regulations define sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” 29 C.F.R. § 1604.11(a). They also identify three types of sexual harassment: sexual conduct as a condition of employment, quid pro quo sexual harassment, and sexual harassment that creates a hostile work environment. Rather than specifying types of behavior that constitute harassment, the EEOC and court decisions require plaintiffs to prove that the nature of the conduct and its consequences meet a certain legal standard.
The U.S. Supreme Court first ruled that sexual harassment constitutes discrimination on the basis of sex under Title VII in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). That decision established the four basic elements of sexual harassment that a plaintiff must prove: (1) unwelcome conduct, (2) based on sex, that (3) constitutes harassment and (4) results in a hostile work environment. The plaintiff must then establish the employer’s liability, which depends on whether the alleged harasser was in a supervisory position or not.
Unwelcome conduct: A complainant is not required to prove that they made a formal complaint, although it is helpful. The EEOC recognizes that a complaint may worsen an employee’s condition, and that a complainant may even feel compelled to acquiesce to sexual demands without “welcoming” them.
Based on sex: Unwelcome conduct may not meet the definition of sexual harassment if the alleged harasser was not motivated by the complainant’s sex.
Evidence of harassment: The EEOC provides few specific examples of conduct that would constitute harassment but emphasizes that it must consider the totality of the circumstances. If conduct is found to be both unwelcome and of a sexual nature, it might constitute harassment.
Hostile work environment: The central question is whether the harassment “unreasonably interfer[es]” with the complainant’s ability to work, or whether the work environment is “intimidating, hostile, or offensive” towards the complainant. 29 C.F.R. § 1604.11(a)(3).
An employer is vicariously liable for sexual harassment by someone in a supervisory position over a plaintiff, defined as someone with tangible authority over the plaintiff’s employment. Vance v. Ball State Univ., 570 U.S. ___ (2013). An employer is liable for sexual harassment by a co-worker or a non-employee if it “knows or should have known of the conduct” and failed to act promptly. 29 C.F.R. §§ 1604.11(d), (e).
The New York sexual harassment attorneys at Phillips & Associates represent employees in claims for unlawful employment practices. To schedule a free and confidential consultation with a skilled and experienced advocate for employee rights, contact us today online or at (212) 248-7431.
More Blog Posts:
Lawsuits by New York City Police Officers, Longshoreman Allege Sexual Harassment by Supervisors, New York Employment Attorney Blog, January 28, 2015
Class Action Lawsuit Alleges Sexual Harassment Against Famous New York City Restaurant, New York Employment Attorney Blog, November 12, 2014
A Brief History of How Sexual Harassment Became Unlawful Employment Discrimination, New York Employment Attorney Blog, May 29, 2014