Sexual Harassment

What is Sexual Harassment? 

The Equal Employment Opportunity Commission defines sexual harassment as any behaviour that "explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment." This includes "unwanted sexual advances, requests for sexual favours, and other sexually oriented verbal or physical conduct.”

Sexual harassment can occur in a variety of settings, including but not limited to:

  • Both the victim and the harasser can be female or male. The victim does not have to be of the same gender as the perpetrator.
  • The harasser could be the victim's supervisor, an agent of the employer, another supervisor, a coworker, or a non-employee.
  • The victim does not have to be the person harassed, but anyone who is affected by the offensive behaviour.
  • Unlawful sexual harassment can occur without causing economic harm or discharging the victim.
  • The harasser's behaviour must be offensive.

What are the different types of sexual harassment? 

There are two legally recognised types of sexual harassment:

Quid pro quo sexual harassment

Quid pro quo Sexual harassment occurs when an individual's submission to or rejection of sexual advances or sexual conduct of a sexual nature is used as the basis for employment decisions affecting the individual. Or when the individual's submission to such conduct is made a term or condition of employment.

  • To establish quid pro quo sexual harassment, a threat of economic loss is sufficient.
  • If a single sexual advance is linked to the granting or denial of employment benefits, it may be considered harassment.
  • Employers have been held strictly liable in court for quid pro quo sexual harassment initiated by supervisory employees.
  • A subordinate who submits and then changes his or her mind and refuses can still file sexual harassment charges as a result of the quid pro quo.

Hostile environment sexual harassment

Hostile environment Sexual harassment occurs when unwanted sexual behaviour interferes with an individual's job performance or creates a hostile, intimidating, or toxic work environment, even if the harassment does not result in tangible or economic job consequences, such as the person losing pay or a promotion.

Employers' liability in cases of hostile environment sexual harassment is determined by two factors:

  • The employer was aware of, or should have been aware of, the harassment, and
  • The employer did not take the necessary corrective action.

If an employer has knowledge of such gross misconduct and fails to correct it, the employer can be held liable for the creation of a hostile environment by a supervisor, non-supervisory personnel, or the acts of the employer's customers or independent contractors.

An employer may be expected to be aware of a hostile work environment:

  • If a complaint was made to management
  • If management fails to implement a sexual harassment policy
  • If the harassment is openly practised or is widely known among employees
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