Unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature all constitute sexual harassment when:

• The person must submit to such activity in order to be hired;
• The person's consent or refusal is used in making an employment decision (e.g., to offer a raise or promotion); or
• Such conduct unreasonably interferes with the person's work performance or creates an intimidating, hostile, or offensive working environment (e.g., humiliating comments are repeatedly addressed to the complainant).

Defining what constitutes sexual harassment depends on the facts of each particular case. In "quid pro quo" cases (instances when employees of either sex are propositioned for sexual favors in order to receive a job, raise, or promotion), the issue may be clear-cut. If a person is passed over for a promotion or denied benefits in favor of an individual who submitted to sexual advances, the passed-over person is considered to be a victim of sexual harassment under federal and state guidelines.

Additionally, if a worker initially participates in social or sexual contact, but then rejects continued unwelcome advances, that constitutes sexual harassment in most instances. The fact that the person does not regularly communicate her negative reaction often may not exculpate the company from liability.

In hostile, intimidating, and unprofessional work environment cases, the issues are not always clear-cut. Typically, to establish a prima facie case, the employee must prove that:

a.she was subjected to unwelcome sexual conduct;

b.the unwelcome sexual conduct was based on her gender;

c.the unwelcome sexual conduct was sufficiently pervasive or severe to alter the terms and conditions of the person's employment and create an abusive or hostile working environment; and

d.the employer knew or should have known of the harassment and failed to take prompt and reasonable remedial action.

Courts have ruled the following to constitute sexual harassment with respect to hostile, intimidating work environment cases:

• Extremely vulgar and sexually related epithets, jokes, or crusty language, provided the language is not isolated and is continuously stated to the complainant
• Sexually suggestive comments about an employee's attire or body
• Sexually degrading words describing an employee
• Repeated touching of the employee's body, provided the touching is unsolicited and unwelcome
• Showing lewd photographs or objects of a sexual nature to employees at the workplace
• Offensive or repeated requests for dates, even if the calls are made to the complainant after work
• Continued advances of a sexual nature which the employee rejects, even after the parties break off a consensual sexual relationship
• Requiring females to wear revealing uniforms and suffer derogatory comments from nonemployees

How the company investigates and acts on complaints is a major factor in determining whether it will end up in court and incur substantial damages. For example, in one case, after a company investigated a sexual harassment charge and found that it had merit, the employer did nothing further but warn the supervisor only once. When the supervisor continued his unlawful conduct (by showing lewd pictures to the complainant), the female worker quit her job and filed a complaint with the EEOC. She was awarded $48,000 when the court ruled that the company had failed to act on its investigation.

Counsel Comments:EEOC guidelines specify preventive affirmative steps that sometimes shield employers from liability. In determining whether an employer is liable, courts look to see if a comprehensive policy against sexual harassment was in place at the time the incidents occurred and whether the employer acted promptly and properly. When policies are vague or the incident is not immediately and adequately investigated, or if the complainant is punished for coming forward, the company will probably be found liable if the facts are true.

Sexual harassment cases are dangerous to employers because some courts have ruled that companies are responsible for the acts of their supervisory employees regardless of whether the company knew or should have known of the occurrence. In quid pro quo cases involving supervisors, there is a good chance that an employer will be held strictly responsible for the actions of its supervisors, whether or not it knew the acts were occurring. In hostile environment cases, companies are often liable for incidents they should have known about, but didn't, when no effective action is taken to end the harassment, even if the company's official policies prohibit sexual harassment.

To avoid these and other potential legal hazards pertaining to sex harassment cases, many employers have begun disseminating periodic reminders in policy manuals, journals, and letters distributed to employees that the company does not tolerate sexual harassment of any kind on the job, that anyone who experiences or observes such treatment should report this to management or their immediate supervisor (but not to the one doing the harassing) immediately, and that all communications will be held in strict confidence with no direct or indirect reprisals to the informant or complainant. In addition, companies are taking steps to instruct supervisors about sexual harassment and other forms of discrimination, what the adverse effects on the company could be, and ways to handle problems if they arise.

(Author's Note: The checklist for sexual harassment investigations on page 158 is a guideline that employers are advised to follow to properly investigate charges.)

How to Prove Sex Harassment

Courts consider the nature and frequency of the acts, the conditions under which the conduct occurred, whether the company was promptly notified by the complainant, and what steps, if any, the company took after being notified. To prove a case of sex harassment, it is crucial to take prompt steps to document your claim. For example, if you are being teased on the job, it is wise to complain to a supervisor or manager in writing immediately after the incident occurred. Judges, arbitrators, and EEOC hearing officers are more willing to award damages for sex harassment when a formal complaint was made requesting that the offensive conduct stop and the request was ignored.

The following case illustrates this point. A woman was the only female traffic controller stationed at an air traffic center. While working there she was subjected to substantial sexual slur, insult, and innuendo by other employees, including various supervisory personnel. When the woman alerted her supervisors of this in a letter, several suggested that her problem might be solved if she "submitted to one of the controllers." The court held that the woman proved that sexually harassing actions took place, that such acts were offensive and severe, and that the employer did little to stop them after receiving a warning through her letter; she was awarded substantial damages as a result. Thus, by sending a letter similar to the one on page 163, you may be able to prove a repetitive pattern of conduct and demonstrate that the offensive acts were not condoned.

Tip:By sending a letter you notify the company of the allegations. When an employer does not properly investigate a claim, it can further compound the problem and be legally exposed. Most important, you have proof that a formal complaint was made. If the company then takes any negative action against you in retaliation, you may be able to prove the retaliation occurred after and because the letter was sent.

Send a copy of this letter to the president or other high officer of the company. Always keep a copy for your files. Save the receipt to prove delivery. If you feel you are the victim of harassment, discuss the incident with other employees you trust to discover if they have suffered similar abuse. By doing so, you may strengthen a claim and be less at risk for making a complaint since there is always safety in numbers. For example, it was recently reported that a sexual harassment and discrimination lawsuit against a well-known investment firm was amended to include 20 more women in a total of 11 states. The newest plaintiffs joined the action (which was started by one woman only) and alleged being subjected to lewd language, unwelcome touching, and being denied opportunities and privileges afforded men. The suit seeks class-action status on behalf of all women employed by the firm, in part for the company's alleged explicit descriptions and sexual talk in the basement of one of its offices.

If possible, collect and save evidence (e.g., the pornographic pictures shown to you). Maintain a diary of all incidents of harassment recalling the location, events, time, persons involved, and name of any witnesses who may have observed the illegal conduct. Recall whether supervisors participated in creating or tolerating a sexually poisoned atmosphere.

Speak to an experienced employment lawyer immediately if:

• the matter is not resolved satisfactorily
• you are retaliated against for making a complaint, such as being demoted, reassigned, denied benefits or a promotion, receive an unfavorable job evaluation, or are fired
• you feel uncomfortable while being questioned about the events (i.e., the company is not conducting a fair and unbiased investigation and is accusing you of contributing to or causing the harassment by your dress, behavior, or language)
• the employer fails to take speedy action to investigate your complaints
• you wish to pursue money damages for stress, mental suffering, and physical injuries caused or induced by the harassment
• the company mistakenly determines that no harassment occurred, that the acts do not constitute harassment, that it had no knowledge of the incident and thus is not responsible, or fails to make a decision in an objective manner
• the employer disparages your character, job performance, or family life
• the employer refuses to allow you to grieve the incident through its complaint procedures

An experienced lawyer can tell you whether it makes sense to confront the harasser, use a company complaint procedure, immediately file a claim in court or with an appropriate federal agency (such as the EEOC) or a state agency, or if more desirable and/or advantageous, to contact the employer and try to settle the matter out of court.

Counsel Comments:Most states have laws that expressly prohibit sexual harassment; there are occasions when it might be advantageous to apply state law and file charges with a state agency instead of the EEOC. Talk to your lawyer about this. Consider filing a private tort lawsuit for assault and battery if you are touched, kissed, or rubbed without your consent. The advantage of being able to file a private lawsuit is that you may receive greater damages for your injuries and may be able to file a charge more than 300 days after the acts occurred. Claimants who are not able to file a discrimination charge because the statute of limitations has expired may still be able to commence a private lawsuit in some cases. (Note: By law, you are required to file a charge of discrimination with the EEOC within 300 days of the incident.)

In any event, do not be afraid to assert your rights when you are subjected to conduct you find uncomfortable. A course of strategy should be implemented immediately so you don't suffer more abuse and to protect your rights in this area. If you delay contacting an appropriate agency or lawyer, your inactivity may be viewed as a waiver of your rights or an acceptance of such illegal acts, which can jeopardize a claim.