Our Award Winning New York Sexual Harassment Attorney has commented and written extensively on sexual harassment in the workplace. In the 25 years since sexual harassment took a very public face in the form of then-Supreme Court nominee Clarence Thomas and his accuser, Anita Hill, the public at large has grown more familiar with the term- and some even understand its broader meaning. But there’s so much more to sexual harassment than is commonly understood. So let’s explore: what exactly is sexual harassment?
Preliminarily, Federal, New York State, and many local laws all prohibit discrimination based on sex (which, in this instance, the term can be used interchangeably with the word “gender”). While different levels of law have varying levels of application to types of employers (e.g. Title VII of the Civil Rights Act, the Federal statute, applies to employers with 15 or more employees, whereas some local laws apply to employers with 4 of more employees), under all laws, sexual harassment has been deemed to be a form of discrimination based on sex.
There are two types of workplace sexual harassment: “Quid Pro Quo” and “Hostile Work Environment.”
• Quid Pro Quo (literally, “this for that”) Sexual Harassment is the “classic” form of sexual harassment that most people understand. It involves a demand (either blatant or subtle) for sexual favors in exchange for some benefit (such as being hired, getting a promotion or raise, etc.) or to avoid some harm (like getting terminated, demoted, or moved to an unfavorable location) in the workplace. QPQ harassment is perpetrated by someone in a position of authority or power over another (like a supervisor or manager.)
• Hostile Work Environment, on the other hand, is not as straightforward. It can arise when speech or conduct rises to a level that it creates an intimidating or demeaning work environment or situation that can (or does) negatively affect a person’s job performance. In contrast to QPQ harassment, anyone can be the perpetrator of a Hostile Work Environment- a supervisor, a coworker, a subordinate; even a contractor or subordinate.
The Supreme Court has stressed that Title VII is not a general workplace civility code; simple teasing, offhand comments, sporadic use of offensive language, and occasional gender-related jokes will not support a Title VII claim. By contrast, discriminatory intimidation, ridicule, or other verbal or physical conduct may be sufficiently extreme to do so. Further, whereas the harassment can be motivated by sexual desire, it doesn’t necessarily have to be in order to actually be sexual harassment.
Take, for example, a recently concluded matter involving an all-male construction crew:
In the matter of EEOC v. Boh Bros. Constr. Co. LLC (5th Cir. 11-30770), after being terminated, a male iron worker – Woods – initiated an action against his former employer based on a hostile work environment created by his supervisor – Wolfe. Woods claimed that his supervisor subjected him to verbal and physical harassment for months because he didn’t conform to Wolfe’s idea of how a man is supposed to act. Wolfe would call Woods names like “pussy”, “princess”, and “faggot”. On several occasions, while Woods was bent over, Wolfe would step behind Woods and simulate having sex. Wolfe exposed himself to Woods, and even critiqued Woods’ use of toilet towelettes (instead of toilet paper) as being “kind of gay” and “feminine”.
While Woods’ ultimate jury award of $451,000 was ultimately reduced on appeal, Woods was successful in his claim. Notably, however, Wolfe wasn’t determined to have sexually harassed Woods because he sexually desired him. Rather, the harassment was based on Wolfe’s subjective perception of Woods’ failure to conform to gender stereotypes (“real men”, according to Wolfe, apparently don’t use moist towelettes.)
And Boh Bros. isn’t an exception; of the almost 7000 sexual harassment charges filed with the EEOC in 2015, a little more than 1,800 resulted in a total of $46 million in awards or settlements. Again- that’s only looking at federal statistics in one fiscal year.
There are a multitude of distinctions between the various levels of law, (for example, under the Federal law, the harassment must be severe or pervasive enough so as to alter the conditions of one’s employment; under New York City law, however, the standard is not as great). If you have questions or concerns about sexual harassment in the workplace, contact our office for a confidential consultation.
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