What conduct rises to the level of sexual harassment? We get this question a lot and often answer the same way: it depends. For example, some callers ask whether rubbing a person’s shoulder is sexual harassment. Others ask whether an inappropriate joke is sexual harassment. Still others ask whether propositioning another is sexual harassment. For all of these questions, we answer that it depends.
Under federal law, sexual harassment is defined as “severe” or “pervasive” conduct that creates a “hostile” work environment. Based on this definition, we must first look at whether the conduct is “severe” or “pervasive,” and then whether the conduct created a “hostile” environment.
Whether conduct is “severe” depends on whether the average person would consider the conduct sufficiently “severe” based on current standards of behavior. Likewise, whether conduct is “pervasive” depends on whether the average person would consider the conduct to have “gone on for too long” based on the same societal standards. Thus, a single sexual joke most likely would not be sexual harassment because today’s standards of behavior dictate that we tolerate an occasional joke. Similarly, a slight brush of someone’s hand most likely would not be sexual harassment. Same with a single love note, or phone call, or lustful glance.
On the flip side, conduct such as forcible touching, a series of unwanted love letters, or a series of offensive jokes may amount to sexual harassment. For example, in Fitzgerald v. Ford Marrin Esposito Witmeyer & Gleser (SDNY 2001), a female attorney brought suit against her law firm for sexual harassment. The attorney claimed that the law firm’s male associates often talked about sex, exchanged sex jokes, called her vulgar epithets, such as “dyke” and “slut,” and “cat called” her as she walked by. The jury found this behavior to be sufficiently severe and pervasive against the backdrop of today’s standards of behavior and awarded the female attorney $80,000 in damages.
Of course the jury would not have awarded the female attorney a dime if they had thought she had tolerated the conduct, i.e., not found the conduct “hostile,” which is the second factor we must take into consideration. In other words, if the attorney had consented to the conduct, no matter how “severe” or “pervasive” the conduct, there would not have been any sexual harassment. Thus, for example, if there was evidence that the female attorney joined the male associates in their discussions about sex, or exchanged sex jokes herself, then the jury may not have found for her. While the jury may have still considered the conduct “severe” and “pervasive,” they would not have considered the female attorney to have perceived it as “hostile.”
If you feel you have been sexually harassed, call an attorney right away. A good attorney will be able to determine whether the conduct rises to the level of proscribed sexual harassment and whether you may be able to initiate a lawsuit against your harassers.