What is the Definition of Sexual Harassment in the Workplace?

The Equal Employment Opportunity Commission (EEOC) Guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when:

• submission to such conduct is made an implicit or explicit condition of an individual's employment;
• submission to or rejection of such conduct affects employment opportunities; or
• such conduct interferes with an employee's work or creates an intimidating, hostile, or offensive work environment.

The key phrases in the EEOC definition of sexual harassment are "unwelcome" and "of a sexual nature." The behavior must be unsolicited and unwelcomed by the victim. The phrase "of a sexual nature" means that sex or gender must be the underlying nature of the behavior. Men and women may have disputes or disagreements on the job, but this would not be viewed as harassment unless there is a sexual element to the interaction.

This definition does not prohibit the usual social interaction, which sometimes is of a sexual nature, among people who work together. People can get acquainted, joke together, or ask for a date as long as that is welcomed by the parties involved. Welcome behavior or consensual contacts of a sexual nature are not harassment.

There are two types of harassment: that which results in a tangible employment action and that which creates an unlawful hostile environment but does not result in a tangible employment action. An employer is always liable for a supervisor's harassment if it results in a tangible employment action. If it does not involve a tangible employment action, however, the employer may be able to avoid liability or limit damages by establishing that it exercised reasonable care to prevent and correct promptly any harassing behavior and that the employee unreasonably failed to utilize the preventive or corrective opportunities provided by the employer.

Harassment involves a tangible employment action if it results in a significant change in employment status based on the employee's responses to unwelcome sexual demands. Examples of tangible employment actions include hiring and firing, promotion and failure to promote, demotion, compensation decisions and work assignments.

The employer is liable for supervisor harassment because supervisors are aided in their misconduct by the authority that the employers have delegated to them, such as the authority to undertake or recommend tangible employment decisions, or to direct the employee's daily work activities.

With respect to conduct between co-workers, an employer is responsible for acts of sexual harassment in the workplace where the employer knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.