We received this question...
Do you think that the law and theorists of sexual harassment should define sexual harassment in a more precise way than "unwanted sexual attention" that produces "discomfort" that "reasonably interferes" with work?
Mary Dorman: As a practicing civil rights litigator, with expertise in gender discrimination, I am unaware of any legal standard that defines sexual harassment as "unwanted sexual attention" that produces "discomfort" that "reasonably interferes" with work.
The Equal Employment Opportunities Commission (EEOC) which is often tracked by the US Supreme Court and other legislatures and courts for its standards, states that "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature" constitute sexual harassment when the conduct meets one or both of two standards:
1. Quid Pro Quo:
- Submission to sexual advances is made explicitly or implicitly a term or condition of employment by an employee's supervisor; or
- Submission to or rejection of sexual advances is used as the basis for employment decisions - such as promotions, raises or transfers - by the supervisor.
2. Hostile Environment: - The unwelcome sexual conduct, by supervisors or coworkers, is so pervasive and severe that it creates a hostile work environment which interferes with an individual's work performance.
In that regard, the courts generally hold that the determination of whether a hostile environment exists is subject to "the constellation of facts that make up the workplace", is a fact intensive inquiry, best left to a jury.