Sexual harassment at work

Anyone can be a victim of sexual harassment at work regardless of gender. Workplace sexual harassment is defined as follows:

• Unwanted conduct
• That is sexual in nature or that is targeted because of the victim’s gender
• That creates an offensive or hostile working environment and/or
• Carries an adverse job action.

Unwelcome conduct

While a victim’s consent is a potential defense for claims of sexual assault, it is not always a defense to sexual harassment. Because of the difference in power that often exists between the harasser and the victim, a victim may not resist sexual conduct because of a fear of repercussions such as the loss of a job. This means that a person may be a victim of sexual harassment even if he or she consents.

However, the conduct must be unwelcome to the victim. A person who willingly participates in sexual banter and who experiences no discomfort will be unlikely to be able to establish that the sexual conduct was unwanted or unwelcome.

Of a sexual nature

Conduct that is sexual in nature does not have to be motivated by sexual desires or be explicit. If the conduct is targeted because of the victim’s gender, it might be sexual harassment.

Hostile or offensive environment

In order to be considered to be sexual harassment, the conduct has to be at a certain level of severity. It must be serious, pervasive or both. Single incidents such as offensive jokes are unlikely to constitute sexual harassment. By contrast, if there are repeated demands for sexual favors or displays of offensive material in the workplace, the conduct may be sexual harassment.

Adverse employment action

In some cases, the victims suffer adverse employment actions such as poor reviews, demotions or terminations. These actions may occur when the victims speak out against the harassment or resist advances.

When workplace sexual harassment is also a crime

While sexual harassment in the workplace is not specifically a crime, some types of conduct are criminal. Some conduct that falls under sexual harassment laws also violates criminal laws. For instance, repeatedly telling offensive jokes based on a co-worker’s gender is not a crime but may be sexual harassment. By contrast, if a co-worker sexually assaults a co-worker, he or she may be guilty of both civil sexual harassment and criminal sexual assault.

Rape

Rape is a very serious type of sexual harassment. If a worker is raped by a co-worker or supervisor, the perpetrator may be criminally charged. The victim may also file a sexual harassment lawsuit against the employer and the perpetrator.

Assault and battery

Physical contact or threats of it that is both intentional and offensive may constitute sexual harassment as well as criminal assault or battery under the states’ criminal laws.

False imprisonment

If the victim’s freedom to move is restrained by the harasser, the restraint may be criminal false imprisonment.

Stalking

Some conduct may also constitute criminal stalking. Examples of when workplace sexual harassment may cross the line into stalking include the following:

• Following the victim home
• Trolling the victim on social media
• Repeated phone calls or text messages
• Waiting for the victim in the parking lot

Where a harasser follows the victim home, trolls him or her on social media sites, waits for the victim in the company parking lot, or engages in other stalking behavior, the harasser may also be charged with the crime of stalking.

Pornography

Sexual harassment at work may include being shown pornographic images. If those images include child pornography, it is obviously criminal in nature.

Getting legal help

If you witness sexual harassment in the workplace or if you are a victim of it, it is important for you to report it. The attorneys at Swartz Swidler might help you with your civil claims and offer you guidance about reporting conduct that is also criminal in nature. Contact Swartz Swidler today to learn more about your claim and your rights.