In employment law, hostile environment sexual harassment refers to a situation where employees in a workplace are subject to a pattern of exposure to unwanted sexual behavior from persons other than an employee's direct supervisor where supervisors or managers take no steps to discourage or discontinue such behavior. It is distinguished from quid pro quo sexual harassment, where a direct supervisor seeks sexual favors in return for something within the supervisor's powers, such as threatening to fire someone, or offering them a raise. Quid pro quo has been recognized as actionable for decades, but hostile environment has only been recognized as an actionable behavior since the late 1980s as courts have made findings that the loss of employment or constructive dismissal has been caused by such behavior. Some situations that have been ruled to constitute such a hostile environment are:
- Posting pictures of pornography in employee's cubicles;
- Consistently telling "dirty" jokes or stories where all employees in the work area can hear them;
- Tolerating employees who make sexually suggestive remarks about other employees within earshot of others;
- Allowing peer employees, clients, suppliers, delivery persons, or even customers (Lockard v. Pizza Hut, 162 F.3d 1062, 1073) to persist in unwanted attention, such as asking for dates;
- Allowing the use of derogatory terms with a sexual connotation (e.g. "pussy", "girlie-man", "player") to be used to describe co-workers;
- Allowing frequent physical contact, even when it is not sexual.
Burdens of proof
Where a hostile environment is alleged, the legality of behaviors must be determined on a case by case basis. In the workplace, such a claim focuses on the working conditions that must be endured by the victim as a condition of employment, rather than on tangible job changes. To establish whether the situation is actionable the "totality of circumstances" must be weighed with an eye to determining "that the harassment affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment". To rise to the level of hostile environment, the behavior must be frequent, severe and pervasive. It is not enough that a single such incident, or a few isolated incidents, have occurred, or that only one employee engages in such conduct (unless that employee is in a supervisory capacity).
In order to establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove the following five elements:
- He or she suffered intentional, unwanted discrimination because of his or her sex.
- The harassment was severe or pervasive.
- The harassment negatively affected the terms, conditions or privileges of his or her work environment.
- The harassment would detrimentally effect a reasonable person of the same sex.
- Management knew about the harassment, or should have known, and did nothing to stop it.
Difficulties and criticism
Tolerance must be the rule in certain workplaces, and the standard for what constitutes a hostile environment differs from workplace to workplace. For example, it would hardly be fair to hold a strip club to the same standard as a law firm, although a strip club could still harbor a hostile environment if management took no action to prevent the dancers from unwanted attention outside of their normal job routine. For example, if a club had a strict "no touch" policy, allowing bouncers or bartenders to persist in unwanted touching could constitute a hostile environment. Moreover, the sensibilities of the most sensitive employee are not the standard—the conduct must be objectionable to any reasonable person.
However, an employer is not allowed to tolerate a hostile environment merely because one sex dominates a department or job function. An employee is entitled to an environment free of lewd, inappropriate behavior such as sexually derogatory jokes and obscene materials, especially in public areas.
Recently, some males in all male workplaces have made claims of hostile environment, often because they became uncomfortable with the sexual banter common in a department and were further denigrated for not joining in such behavior.
There is no universal standard as to what constitutes a hostile environment, and cases with very similar situations have been decided differently. Moreover, the standard of finding the employer liable is very high—the plaintiff must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is also not enough to show that sexually suggestive behavior occurred—the plaintiff must show that the employer could have taken reasonable steps to stop the behavior. For example, the employer could not be held liable for such behavior if it occurred at a bar after work.
A caveat, however. If the comments are made by a supervisor to a subordinate at the bar and they carry negative impact over into the workplace, the subordinate may make a claim for harassment, based on a hostile work environment.
- Pellicciotti, Joseph M. Title VII Iiability for sexual harassment in the workplace. Alexandria, Va. International Personnel Management Association, 1988.
- Proving Discrimination,Proving Pregnancy Discrimination,Proving Racial Discrimination
- Sexual harassment
- Jenson v. Eveleth Taconite Co.
- Meritor Savings Bank v. Vinson
- Hostile Advances: The Kerry Ellison Story movie about Ellison Y. Brady which set the "reasonable woman" precedent in sexual harassment law.
- Oncale v. Sundowner Offshore Services
- Weaver v NATFHE