What Constitutes Sexual Harassment in the Workplace?

While recent social movements have empowered both women and men alike to break their silence and come forward with their stories of sexual harassment, this kind of harassment is unfortunately an all-too-common occurrence in the workplace. A survey by Stop Street Harassment in 2018 showed that 81% of women and 43% of men have been harassed in their lifetime, with 38% of the women surveyed having experienced sexual harassment in the workplace. Sexual harassment can take many forms, such as inappropriate touching and other physical conduct, sexually explicit jokes and stories, requests for sexual favors, and sexist comments and slurs. Another type of sexual harassment is quid pro quo, where sexual activities are exchanged for a favor, benefit, or prevention of a threat, often between a supervisor and a subordinate employee.

As you can see, sexual harassment is not limited to only physical touching, nor does it have to occur between persons of the opposite sex. If an employee is subjected to any such unwelcome behaviors that unreasonably interfere with the employee’s work performance, or these behaviors create an intimidating, hostile, or offensive work environment, then they may have been sexually harassed. Importantly, the harassing conduct must be severe or pervasive to establish a claim for sexual harassment, meaning that the conduct is likely serious or continuous. Harassing conduct that is not severe or pervasive enough to create a hostile work environment for the employee, like simple teasing, offhand comments, or isolated incidents, may not be considered sexual harassment.

Does a Sexual Harasser have to be your boss?

A sexual harasser can be an employee’s supervisor, a supervisor in another area, a co-worker, an agent of the employer, or a non-employee. Who the harasser is matters from a legal standpoint, as different standards are applied to a supervisor compared to a co-employee, for example. An employee may be eligible to make a claim for sexual harassment if they are affected by the offensive conduct at issue, even if they are not the direct victim of the sexual harassment. If you are a victim of workplace sexual harassment, the Texas Workforce Commission (TWC) first recommends directly informing the harasser that the conduct is unwelcome and must stop, as well as utilizing any employer complaint or grievance system that is available. It’s prudent to keep a log of the sexual harassment, along with all text messages, emails, or anything that the harasser does in writing.

Can I be fired for reporting sexual harassment?

When investigating allegations of sexual harassment, the TWC and the Equal Employment Opportunity Commission (EEOC) consider all of the circumstances that surround a complaint and make a determination on a case-by-case basis pursuant to the particular set of facts at hand. Many victims of sexual harassment are also worried that if they do make a complaint and inform their employer, that they will then be terminated or face other retaliation, such as a demotion or reassignment to a position with significantly different responsibilities. This fear is well-founded too, as a report released by the EEOC in 2020 showed that roughly 56% of the complaints received during that year were related to retaliation after reporting a sexual harassment incident. However, the law protects an employee who reports sexual harassment to their employer.

While sexual harassment and retaliation remain prevalent in the workplace, sexual harassment and retaliation laws provide the opportunity of compensation for economic harms, such as past and future lost wages and for emotional pain and suffering.

How do I know if I have a case if I have been sexually harassed at my place of work?

You may or may not think you have “enough” to take legal action if you feel you have been sexually harassed in the work place. That is why it is always smart to speak with an employment lawyer in your state who is well versed in the law and the documentation needed for a strong case. Ross Scalise Employment Lawyers have been operating in Texas since 1998 and we’re here to answer any questions you may have.