Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against any individual with respect to her sex or gender. As a subset of gender discrimination, it is likewise unlawful for an employer to participate or condone sexual harassment in the workplace. Sexual harassment can occur in a variety of ways, including:
- unwelcome physical contact;
- unwelcome propositions and sexual advances;
- offensive or abusive sexual comments, jokes and innuendos; and
- the display of inappropriate materials.
Generally, sexual harassment claims are divided into three categories: Quid Pro Quo Harassment; Hostile Work Environments; and Retaliation.
Quid Pro Quo Harassment
Quid Pro Quo sexual harassment occurs when an employer conditions, explicitly or implicitly, the receipt of a job benefit or a tangible job detriment on the employee's acceptance or rejection of sexual advances.
Hostile Work Environment
A Hostile Work Environment claim under Title VII occurs when an employee is subjected to a pattern of offensive sexual conduct that has the effect to creating an abusive work environment. In cases involving non-supervisory co-workers, the employee also must show that the employer had notice of the hostile environment and failed to take sufficient remedial action. If a supervisor is involved in the creation of the hostile environment, liability can turn on additional factors such as whether an adverse action was taken or whether the employee availed herself to a company complaint procedure.
Finally, a claim for Retaliation occurs when an employee suffers an adverse employment action because she complained of sexual harassment or otherwise participated in an EEOC investigation into such matters. Generally, most employees are protected from retaliation when making complaints of sexual harassment, even if the severity of the conduct is not substantial enough to impose employer liability for a hostile work environment. But for initial complaints of offensive conduct, an employer would have no basis to initiate remedial action to prevent the escalation of a hostile work environment.