Labor and Employment

Sexual Harassment in the Workplace

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

Are you facing sexual harassment on the job? If you have to put up with unwanted sexual conduct at work, such as sexual banter, dirty jokes, propositions, or pornography, you may be a victim of sexual harassment. But not every sexual comment adds up to a strong legal claim for sexual harassment. Read on to find out how the law defines harassment and what you should do if you are facing harassment at work. (For more on this topic, see Sexual Harassment FAQs for Employees.)

Sexual Harassment FAQs for Employees

What Is Sexual Harassment?

Sexual harassment is unwelcome sexual conduct, advances, or requests for sexual favors that either results in a negative job outcome (such as being fired or passed over for promotion) or is so severe and frequent that it creates a hostile work environment.

Although the most common sexual harassment scenario by far is men harassing women, women also harass men, men harass other men, and women harass other women. The gender of the perpetrator and the victim doesn’t matter: If the conduct is based on sex and meets the definition above, it is sexual harassment.

Harassment can be committed by a supervisor, company owner, coworker, customer, or vendor.

Here are some examples:

  • A supervisor asks an employee out on dates frequently, and she always turns him down. Finally, she tells him that she isn’t interested in seeing him socially. He tells her that she should reconsider, because her performance review is coming up and he would hate to have to give her a poor rating.
  • A group of employees tell raunchy sexual jokes and stories each morning in the office kitchen. An employee who has to use the kitchen to make coffee for the morning staff meeting is uncomfortable with the comments, and asks the employees to stop. They begin teasing her directly with sexual comments.
  • A delivery driver is harassed every time he brings a package to a car dealership. The workers make sexual comments about his appearance and the way he walks, and threaten him with sexual assault.
  • A sales representative is groped, kissed, and propositioned by a client who has too much to drink at a pitch meeting. She asks to be reassigned, but her boss tells her that she will “catch more flies with honey that vinegar.”

Who Is Protected?

Sexual harassment is a form of sex discrimination, prohibited by Title VII of the Civil Rights Act of 1964. Employers must comply with Title VII if they have at least 15 employees.

Most states and many local governments also have passed laws prohibiting sex discrimination and sexual harassment. Some of these laws apply to smaller employers. In California, for example, all employers are subject to the law prohibiting sexual harassment, even if they have only one employee.

When Is Conduct Unwelcome?

To prove sexual harassment, you must show that you did not welcome the sexual conduct or comments to which you were subjected. In many harassment cases, there is no dispute that the conduct is unwelcome. If you are physically groped, subjected to sexually belittling comments, or threatened with assault, for example, the conduct is clearly unwelcome.

Sometimes, however, an employee claiming sexual harassment has been involved in workplace sexual banter or told an occasional dirty joke, and the perpetrator will claim not to have known that the victim found his conduct upsetting. If you are in this situation, your best course of action is to clearly state that you don’t like the perpetrator’s behavior and to ask him to stop, as explained below.

Severe and Pervasive Conduct

If you are facing hostile environment harassment, you must show that the conduct is severe and pervasive. These requirements work together: The more serious the sexual conduct, the fewer times it has to happen in order to add up to harassment. For example, a single threat of sexual assault is likely enough. On the other hand, you may have to show that sexual jokes or teasing happened relatively frequently in order to prove harassment.

If You Are Facing Sexual Harassment

The first step to take if you are being harassed is to tell the harasser to stop. Sometimes, harassers don’t understand that their behavior is inappropriate and upsetting. As explained above, making clear that you don’t like the harasser’s conduct will help you prove that it was unwelcome, if you end up in court. More importantly, it may actually put an end to the harassment, so you can get back to your job.

If the harasser won’t stop, or if you feel uncomfortable confronting the harasser for any reason, complain within your company. Check the employee handbook to find out how to report sexual harassment, and follow the complaint procedure carefully.

It’s important to report harassment not only to put a stop to the behavior, but also to protect your legal rights. If your employer has a policy for reporting harassment, investigates harassment claims, and takes effective action against wrongdoers, it will not be liable for hostile environment harassment unless you report it. If you are subjected to a negative job action by a supervisor, the company will be liable. But it won’t be legally responsible for other types of harassment unless you take advantage of the company’s process by filing a complaint.

If you aren’t happy with your company’s handling of the complaint, you can file a charge of discrimination with the Equal Employment Opportunity Commission (the federal agency that enforces Title VII) or your state fair employment practices agency. These agencies may investigate, propose mediation, or try to negotiate a settlement between you and your employer. Filing an agency charge may resolve the dispute to your satisfaction; it’s also a legal prerequisite to filing a lawsuit.

Talk to an Employment Lawyer

If you believe you are being harassed at work, you should consult with an experienced employment attorney. An attorney can negotiate with your employer to try to end the harassment and make you whole. An attorney can help you use your company’s internal complaint system, respond to the investigator’s questions, draft your agency charge, and much more. If necessary, an attorney can also help you vindicate your rights in court. (See Will a Lawyer Take Your Sexual Harassment Case? for more information.)

Questions for Your Attorney

  • I'm experiencing sexual harassment at work, but I'm afraid of the consequences if I seek help from a manager or human resources. Will it help or hurt to have a lawyer representing me in my company’s internal complaint process?
  • How hard is it to prove a claim of hostile environment?
  • Can I make a claim for sexual harassment if I quit my job because I can’t take it any more?

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