Harvey Weinstein. Louis C.K. Roy Moore. The list of prominent men admitting to or being accused of sexual harassment seems to grow longer each day. But what exactly is the legal definition of sexual harassment?
The U.S. Equal Employment Opportunity Commission (EEOC), the government agency that enforces discrimination laws, says, "It is unlawful to harass a person (an applicant or employee) because of that person's sex. Harassment can include 'sexual harassment' or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature."
The U.S. courts recognize two types of sexual harassment in the workplace: quid pro quo harassment and a hostile or abusive work environment.
Quid pro quo harassment is a sexual favor as a term or condition of employment. (The Latin term literally means "this for that.") A good example is actress Dawn Dunning's allegation that Harvey Weinstein invited her to his hotel suite, showed her contracts for his next three films but said she could only sign them if she agreed to have three-way sex with him. Prior to all the recent headlines, this type of sexual harassment was believed to be in decline, notes Merrick "Rick" Rossein, an employment law professor at the City University of New York Law School.
To qualify as quid pro quo, a harasser must have the power to influence the professional treatment of the victim, such as whether she's hired, promoted or receives salary increase. "If proven, the employer is always liable, even if they had a policy against asking for sex in the workplace," Rossein says. The favor doesn't always have to be explicit. It can be hinted at through words or gestures (touch).
Hostile Work Environment
The other, far more prevalent, form of sexual harassment is the hostile or abusive work environment. This can occur between co-workers or even between an employee and someone else who enters the building, such as a delivery person or outside sales representative.
Several elements must be present to prove this type of harassment, Rossein explains. Unwelcome conduct can be verbal, physical or a combination of both. The conduct must also be severe or pervasive, and that's where a lot of lines get blurred.
Sometimes, severity is obvious, like when a man grabs a woman's breast or butt (incidentally, this also qualifies as physical assault, and is covered by civil and criminal law). However, severity can also be more nuanced. Rossein gives the example of a woman named Sally who complains to HR about her co-worker Pete who regularly compliments her on her attire. Does Sally have a legitimate complaint or is she overly sensitive? A lot depends on how the compliment is made (is Pete saying something like, "Your butt looks good in that dress"?) or the tone in which a seemingly innocuous statement is delivered. And finally, how does Sally feel about receiving this "compliment"?
"Sexual harassment is broader than what the law says," asserts Jennifer Drobac, a professor and expert in sexual harassment law at Indiana University's Robert H. McKinney School of Law. "I say, to sexually harass is to dominate another physically or psychologically by annoying, frightening, demeaning or taking advantage of someone. Harassment is [gender-based] discrimination played out. You can have discriminatory attitudes but when you act on those attitudes that's harassment."
Sexual harassment violates Title VII of the 1964 Civil Rights Act. Title VII applies to organizations with 15 or more employees, although people who work at smaller companies can be still be liable for sexual harassment. Many states' laws apply to organizations with fewer than 15 employees. The EEOC states that both men and women can be victims of sexual harassment and it can occur between people of the same sex. Also, making offensive comments about women in general could be considered sexual harassment.
Harassment Vs. Assault
There is also some bleed-over between assault and harassment. "Sexual assault is a violent form of sexual harassment," says Drobac. "Sexual harassment has to be severe or pervasive. If you have a lot of the gross, demeaning jokes you may have actionable harassment," she explains. "But it only takes one instance of violent sexual assault to constitute what would be actionable sexual harassment."
She notes that just because behavior isn't actionable — yet — doesn't mean it's not sexual harassment. "[People] should still complain about it because sexual harassment tends not to go away. Perpetrators tend to continue, and behavior tends to escalate."
Not that victims aren't within their rights to be worried about the process. The law has often failed to shield them from retaliation and smearing. In fact, a study published in Harvard Business Review found that 75 percent of women reported being sexually harassed at work. A separate meta-analysis of sexual harassment studies showed less than 20 percent of those harassed filed a formal complaint.
Drobac would like to see a major overhaul in the use of confidentiality clauses, typically required by the employer in especially damning cases. "Those only allow companies to camouflage prior illicit behavior. If they want to keep the settlement amount confidential that's fine, but the underlying behavior should not go under a rock," she says.
"The strongest cases that actually are filed [are the ones that] get settled," Rossein adds. "The problem with settlements is it's putting band-aids on the problem, not really dealing with the systemic issue of sexual harassment."