Questions & Answers About Workplace Harassment and Retaliation

• Q: What is Sexual Harassment?
• Q: What does the term "hostile environment" mean?
• Q: What do the terms "severe or pervasive" mean?
• Q: What is unwelcome behavior?
• Q: What are some examples of Sexual Harassment?
• Q: What is retaliation?
• Q: What is protected conduct?
• Q: Did your employer take adverse action?
• Q: Did your employer know about your protected conduct?
• Q: What is the evidence that your protected conduct led to your termination?
• Q: How can I counter my employer's denials?
• Q: Who enforces the law?

Q.  What is Sexual Harassment?

Sexual harassment is unwelcome behavior that happens to you because of your sex. There are two forms of sexual harassment in the workplace:

• Quid Pro Quo: Submitting to or rejecting this conduct is used as the basis for employment decisions or is made a condition of employment.
• Hostile Work Environment: conduct is sufficiently severe or pervasive that it creates an intimidating, hostile, or offensive work environment.

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Q.  What does the term "hostile environment" mean?

Even if there has not been a tangible employment action, sexual harassment can still be against the law if it is severe or pervasive enough to alter the conditions of your employment and create an abusive working environment for you.

Some of the factors which may affect this determination include:

• whether the conduct was verbal or physical, or both;
• how frequently it was repeated;
• whether the conduct was hostile and patently offensive;
• whether the alleged harasser was a co-worker or a supervisor;
• whether other co-workers joined in perpetrating the harassment; and
• whether the harassment was directed at more than one individual.

The standard for determining whether the conduct is enough to create a hostile environment is that of a "reasonable person," with consideration given to the context in which the alleged harassment took place. This objective standard guards against claims brought by hypersensitive people who are more easily offended than most, while also recognizing that from the victim's perspective, certain conduct can cause a hostile work environment even if some people rely on stereotyped notions of acceptable workplace behavior to conclude the conduct is harmless or insignificant.

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Q: What do the terms "severe or pervasive" mean?

The conduct of the harasser must either be severe or pervasive to be considered a sexually harassing hostile environment that is against the law. A single incident probably will not be considered sexual harassment unless it is severe, such as a single incident of rape, attempted rape or other sexual assault.

Although a single unwanted request for a date or one sexually suggestive comment might be inappropriate, offend you or otherwise be unwelcome, it may not be sexual harassment that is against the law. A number of separate incidents that alone are relatively minor may add up to sexual harassment if the incidents viewed as a whole affect your work environment and as a result become "pervasive."

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Q: What is unwelcome behavior?

“Unwelcome” is the critical word. Unwelcome does not mean "involuntary." A victim may consent or agree to certain conduct and actively participate in it even though it is offensive and objectionable. Therefore, sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome. Whether the person in fact welcomed a request for a date, sex-oriented comment, or joke depends on all the circumstances.

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Q: What are some examples of Sexual Harassment?

Verbal Comments:

• Referring to an adult as a girl, hunk, doll, babe, or honey
• Whistling at someone or cat calls
• Making sexual comments about a person's body
• Making sexual comments or innuendos
• Turning work discussions to sexual topics
• Telling sexual jokes or stories
• Asking about sexual fantasies, preferences, or history
• Asking personal questions about social or sexual life
• Making kissing sounds, howling, and smacking lips
• Making sexual comments about a person's clothing, anatomy, or looks
• Repeatedly asking out a person who is not interested
• Telling lies or spreading rumors about a person's personal sex life

Non-verbal Conduct

• Looking a person up and down (a.k.a. “elevator eyes”)
• Staring at someone
• Blocking a person's path
• Following the person
• Giving personal gifts
• Displaying sexually suggestive visuals
• Making sexual gestures with hands or through body movements
• Making facial expressions such as winking, throwing kisses, or licking lips

Physical Conduct

• Giving a massage around the neck or shoulders
• Touching the person's clothing, hair, or body
• Hugging, kissing, patting, or stroking
• Touching or rubbing oneself sexually around another person
• Standing close or brushing up against another person

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Q: What is retaliation?

Most of the federal laws that protect employees' rights contain provisions that make it unlawful for an employer to retaliate against someone who engages in conduct which the law protects. Retaliation is taking revenge against someone for complaining about sexual harassment. Some common examples are:

• demoting an employee;
• changing an employee’s hours of work or job responsibilities in a way that makes them less favorable then before he or she complained;
• disciplining an employee for conduct that other employees are not disciplined for; and
• terminating an employee

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Q: What is protected conduct?

“Protected conduct” includes all aspects of trying to oppose or remedy discrimination, such as: filing a charge of discrimination; threatening to file a charge; complaining about, opposing or protesting perceived discrimination against yourself or another employee; assisting someone else in opposing discrimination; giving evidence or testimony to an investigator; refusing to engage in conduct that the you believe to be unlawful; and refusing to assist an employer (by testimony or otherwise) in discriminating

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Q: Did your employer take adverse action?

Your employer must have retaliated against you in some way that is “materially adverse” and likely to “dissuade a reasonable worker from making or supporting a charge of discrimination” for the conduct to be considered unlawful. Usually, unlawful retaliation takes the form of demotion, harassment or termination, but as a result of a recent Supreme Court decision, does not have to be confined to employment or occur at the workplace, if it is enough that a reasonable person would be less likely to complain about discrimination as a result.

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Q: Did your employer know about your protected conduct?

You must show that your employer knew that you engaged in protected conduct. This requires that the person who makes the actual decision about your job, either verbally or in writing, knew about your conduct. Telling the decision maker about your conduct is the simplest way to assure that the employer knows about your protected activity. However, there are other ways that the decision maker could have learned about your conduct. Other company employees or supervisors or the Equal Employment Opportunity Commission may tell someone at your company about your protected conduct. If you cannot prove that your employer knew about your protected conduct, you will not be able to prove a case of retaliation.

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Q: What is the evidence that your protected conduct led to your termination?

The most difficult part of a retaliation claim is showing a causal connection between your protected conduct and the adverse action taken against you. Timing can be evidence of a causal connection. If your employer fires you shortly after you file a charge of discrimination, one can infer that your protected conduct was the real reason for your termination. Other ways to establish causal connection include showing that other employees who engaged in protected activity were fired, showing that other employees guilty of the same alleged misconduct were not fired, or showing any other circumstance which justifies an inference that your termination was motivated by your protected activity.

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Q: How can I counter my employer's denials?

You can disprove your employer's stated reasons for your termination by showing that the employer's excuse is factually untrue, that it was insufficient to have actually caused your discharge, that it is simply unworthy of credence, or so riddled with errors that your employer could not realistically have relied on its stated reason. Remember, it is always going to be up to you, the employee, to prove unlawful motivation. While difficult, it is not impossible. Circumstantial evidence can be powerful in proving your case.

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Q: Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the federal governmental agency responsible for investigating charges of sexual harassment and retaliation, among other violations, on the basis of protected conduct in workplaces of 20 or more employees. Most states have their own agencies that enforce state laws against retaliation.

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Additional Resources

For more information on Sexual Harassment in the workplace, please visit our website
www.stopworkplaceharassmentnow.com.