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EMPLOYMENT LAW GUIDE: - page 15 / 134

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F.

Sex - Sexual Harassment

Sexual harassment is a form of gender discrimination. Men as well as women can be

victims of sexual harassment, and persons of the same gender can be victims. There are two

forms of sexual harassment, commonly known as “quid pro quo” and “hostile work

environment.” Quid pro quo sexual harassment occurs when unwelcome requests for sexual

favors or acquiescence in sexual advances or conduct are made a condition of employment or

a basis of employment decisions. In order to establish a claim, the victim must show that (i)

the harasser made sexual advances or sexual requests, or engaged in conduct of a sexual

nature; (ii) the sexual conduct was unwelcome; and (iii) the victim rejected the advances and

suffered an adverse employment action, or submitted to the advances in reasonable fear of an

adverse employment action.

To establish hostile work environment sexual harassment, the victim must establish

  • (i)

    she (or he) was subjected to conduct of a sexual nature; (ii) the conduct was unwelcome;

  • (iii)

    the conduct had the purpose or effect of creating an intimidating, hostile, humiliating or

sexually offensive work environment; and (iv) the conduct interfered with work performance

or altered terms and conditions of employment.

“Conduct of a sexual nature” is wide-ranging and can include inappropriate touching,

sexual epithets, jokes, gossip, comments, displaying sexually suggestive pictures and objects

and leering, whistling or sexual gestures. Although such conduct must be “unwelcome” to be

unlawful, the victim need not communicate an objection to the harasser to demonstrate that

the conduct is unwelcome.

To be unlawful, the conduct must be “objectively” offensive - that is, it must be of a

nature that a reasonable person would find it offensive. The conduct also must be “severe”

or “pervasive” to be unlawful. This means that a single serious incident (such as a sexual

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