Unwanted desiring eyes and off-color remarks are creepy and sexually harassing. An employer can be held liable for a large sum of money to the harassed person.
By: Brad Nakase, Attorney
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When Lana arrives at work, she dawdles in her car, not wanting to go inside the office. She loves her job selling fixing electronics, but everything changed when Sebastian became her new supervisor. He has just joined the company last month, and ever since he was put in charge of Lana’s team, Lana’s work life has changed for the worse. Sebastian treats Lana differently than the other employees. In the mornings, when she goes to the breakroom for a cup of coffee, he follows her, making sure they are alone. He sidles up uncomfortably close and whispers in her ear, grinning flirtatiously. In the afternoon, he’ll swing by her desk for no reason and lean over into her personal space so that he sometimes touches her. When he wants to help her with a computer or device, his hand will cover hers. Once, at a company after-hours drink, he even tried to kiss her. When she rejected him, he embarrassedly blamed the attempt on the alcohol. At work the next day, he acted rudely to her, criticizing her unfairly and more than her coworkers. Only when Lana entertains his unwelcome harassment does he treat her fairly and give her a good performance report. Lana has no sexual interest in Sebastian but worries that her job is contingent on her putting up with the sexual harassment. Lana feels stuck. She would love to keep her job and get Sebastian in trouble. So, she goes to her human resources department, hoping that they can help her. Immediately upon listening to her story and collecting evidence, Lana’s company fires Sebastian for sexual harassment. Lana is pleased to get back to doing the job she loves in comfort.
According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is behavior that includes unwanted sexual advances, requests for sexual favors, and other physical or verbal harassment of a sexual nature that occurs in a workplace or educational environment.
It may further be defined as:
The word “unwelcome” is critical for interpretation. It does not mean “involuntary,” because a victim can consent or agree to participate in the conduct even if it is offensive. Sexual conduct is deemed unwelcome, therefore, when the victim considers it unwelcome.
Sexual harassment is not always one individual subjected to unwelcome behavior. It can also consist of negative comments made about women in general.
Generally, sexual harassment laws do not protect against teasing or offhand comments, though they can certainly make an individual or group feel uncomfortable. For the problem to be classified as sexual harassment, it must be persistent and serious in nature.
Example: One day at work, while at lunch, Eliana makes a comment about her coworker Jared’s abdominal muscles. She praises his figure in front of the other women at the office and makes a suggestive remark. Jared, who is nearby, feels uncomfortable at being objectified. But the situation does not arise again, and Eliana makes no further comments about Jared or his physique. Though Jared was uncomfortable, this is considered a one-off scenario and would not qualify as sexual harassment under civil law. However, if Eliana were to consistently tell Jared about how much she likes his abdominals, then that would qualify as sexual harassment.
There are many situations in which sexual harassment can occur. The individual doing the harassing can be of any gender and have any relationship with the victim. This means the harasser could be a manager, supervisor, colleague, teacher, or peer.
Sexual harassment can appear in the following forms:
Example A: Georgia’s boss has been flirting with her for a few months, despite Georgia making it clear that she is not interested in him. When Georgia has her performance evaluation, her boss says that she’s due for a raise, but that he might need some “persuading” to give it to her. He promises the raise in exchange for a date. This is quid pro quo harassment.
Example B: Henrietta, Kylie, and Irina are the three female employees at Sunrise Enterprises, a tech company in Marina del Rey. The male-dominated workplace has proven to be hostile. The male employees constantly make rude sexual jokes about the women, making comments and gestures referring to sexual acts. This is sexual harassment targeting a group.
Example C: Liz and Anne are coworkers who love to gossip. During lunch, in the breakroom, they talk openly about their personal sexual exploits, as well as who in the office they would like to pursue. As these conversations take place in the office and can be heard by other employees, this qualifies as sexual harassment.
Sexual harassment is an umbrella term covering many forms of unwelcome verbal and physical sexual attention. Sexual assault, meanwhile, is physical sexual contact or behavior that happens without the consent of the victim. While sexual harassment usually violates civil laws, it is not normally a criminal act. Sexual assault, by contrast, is criminal behavior, and includes the following:
Sexual misconduct, on the other hand, is a term used generally to describe behavior, and not necessarily harassment. For instance, if a company prohibits sexual relationships between coworkers, and two coworkers still maintain a relationship, then they are technically engaged in sexual misconduct. Similarly, if an employer and employee have a sexual relationship, then they are engaged in sexual misconduct.
Example A: At a company Christmas party, Richard has too much to drink and decides to pursue Anya, the office secretary. Despite Anya firmly rejecting Richard’s advances, Richard attempts to have sex with her in the restroom, only to be interrupted by another employee. As attempted rape, this is criminal behavior and is classified under sexual assault.
Example B: Connie has a crush on her coworker, Christopher. Each day at work, Connie sends him explicit text messages, hoping to engage him in flirting with her. This qualifies as sexual harassment.
Example C: Riley and Todd work together at the same office. Their company explicitly prohibits relationships between employees. However, Riley and Todd pursue a sexual relationship anyway. When it is discovered, both are disciplined by their employer for sexual misconduct.
Sexual harassment can happen in a learning environment or workplace, and it can happen in a variety of situations. These situations do not only include exchanges within the office environment. They include after-hours or hallway conversations, as well as non-office settings among employees or peers.
Bystander intervention is when someone steps in to help another individual at risk for sexual assault. This strategy may also be used to help prevent sexual harassment. It is possible to intervene in a way that fits one’s comfort level while still helping the individual in question. Methods of helping someone escape a situation of sexual harassment include the following:
Interrupt the harassment or distract the harassers, so long as one is not putting oneself in danger by doing so. If the harasser appears violent or prone to violence, it is not a good idea to draw their attention in this way.
Example: At work, Cara witnesses Jacob cornering another employee, Suzanna. Cara notices Jacob putting his arm around Suzanna’s waist and him whispering in her ear. Suzanna, she notices, has her face turned away in a grimace. This does not appear to be a consensual encounter. Hoping to help Suzanna, Cara walks up to them and says, “Hey, Jake, can you help me with the photocopier? I think it’s broken.” Distracted, Jacob leaves Suzanna alone, allowing her to flee.
Talk to the person being harassed and offer to accompany them any time they have to interact with the harasser.
Example: After witnessing Jacob harassing Suzanna, Cara talks with Suzanna privately, telling her what she witnessed. “I know,” Suzanna says glumly, “I hate having to be around him, but sometimes I have to for work.” Cara offers to accompany Suzanna any time she has to be around Jacob, and even offers to walk her to her car after work.
Because it can be difficult sometimes to act alone, it may be a good idea to find another employee or peer to help confront the harasser or help the person being harassed. There is, after all, strength in numbers.
Example: One day, Suzanna walks out of the office to go to the restroom. Cara witnesses Jacob following her out the door. Cara signals two other employees to go into the hallway with her to confront Jacob. Together, the three of them ask Jacob what he’s doing following Suzanna to the restroom, and he is forced to come up with a weak excuse.
Perhaps the safest method is to find an authority to address the situation, such as an employer or HR.
Example: Worried about Suzanna, Cara goes to HR on her own, where she explains what she has witnessed. HR interviews Suzanna and Jacob before deciding to discipline Jacob for sexual harassment.
Individuals who have experienced sexual harassment may have to deal with emotional, physical, or mental health effects. These might include the following:
Example: For two years, Brianna worked at NeuroTech Industries. Everything was going well for her career until Colin started working on her team. Colin consistently made rude, sexual comments in her presence, touched her without her consent, and sent her unwanted explicit text messages. After months of rejecting him and telling him to stop, Brianna finally told HR about the harassment. Colin was summarily fired, and Brianna thought it was all over. A couple days later, she found Colin waiting outside her apartment, where he assaulted her. Afterward, Brianna reported him to the police and Colin was convicted of sexual assault. Even though he is now locked away, Brianna is suffering from the effects of sexual harassment and assault. She feels humiliated that it happened, as well as powerless. She did all the right things, and still she was hurt. Her mental health has taken a downturn, with a diagnosis of anxiety and panic attacks. Every time she sees someone who looks like Colin, her heart races and she feels faint. Due to an increase in depression, Brianna barely eats and has lost an unhealthy amount of weight. All of this is the result of her harassment and assault, which has turned her, she feels, into a different person.
