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Problems of sexual harassment in Hollywood are leading to growing scrutiny of the problem nationwide.   Connecticut employers need to understand what constitutes sexual harassment and how the law applies to these cases.

In this article, we will cover the definitions of sexual harassment first. In the next installment, we’ll look at the legal ramifications of allowing sexual harassment in the workplace.

Discrimination Defined

Discrimination is defined as different, unequal, and usually negative treatment of people because they are members of a particular group. Federal law (Title VII of the Civil Rights Act of 1964) and state law (Connecticut Fair Employment Practices Act) prohibit discriminatory conduct based on certain protected classes. Those classes are:

• race/color
• religion
• gender
• marital status
• pregnancy
• national origin
• age
• mental/physical disability
• veteran status
• sexual orientation
• genetic information
• gender identity/expression
• intern status

Sexual Harassment Defined

What exactly is sexual harassment?

Title VII of the Civil Rights Act of 1964, as amended, and the Connecticut Fair Employment Practices Act prohibit employment discrimination on the basis of “sex.” “Discrimination on the basis of sex” has been interpreted to include sexual harassment.

Just what is the legal definition of sexual harassment?

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

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.”
4. This definition includes both quid pro quo and hostile work environment harassment (discussed below).

What does it look like? Here is a practical, behavioral definition of sexual harassment:

• “Unwanted sexual or gender-based behavior that occurs when one person has formal or informal power over the other.”
• “Unwanted sexual or gender-based behavior that occurs when one person has formal or informal power over the other.”

There are three key elements to the definition of sexual harassment:

1. The behavior is unwanted or unwelcome
   • Employers need to focus on the victim’s perspective, how a “reasonable person” might feel. The recipient of a particular behavior always decides whether a behavior is unwelcome. The intent of actor/initiator is not determinative.
   • A victim’s failure to object does not necessarily mean that the conduct is wanted or welcome.
   • A victim’s failure to object does not necessarily mean that the conduct is wanted or welcome.
2. The behavior is sexual or related to the sex or gender of the harassed person.
   • The conduct must have a sexual connotation (e.g., from flirting to sexual assault) or occur because of the gender of the harassed person (e.g., negative remarks about the opposite sex).
   • Both females and males may be subject to gender-based harassment.
3. The behavior usually occurs in the context of a relationship where one person has more formal power or more informal power than the other.
   • Sexual harassment often has more to do with power than it does with sex.
   • Formal power: this element involves the influence and control wielded by a supervisor over an employee.
   • Formal power: this element involves the influence and control wielded by a supervisor over an employee.

What types of conduct constitute sexual harassment?

Sexual harassment may be verbal, non-verbal or physical:

• “Quid pro quo” harassment.
  • “Put out or get out”
  • “Go along to get ahead”
  • Quid pro quo harassment is illegal whether the victim submits to it or not
• A hostile work environment.
  • An employee’s conduct is legally actionable when it is so severe or pervasive that it substantially interferes with job performance or creates an intimidating, hostile, uncomfortable or offensive working environment.
  • The work environment must be both “objectively and subjectively” hostile.
  • To determine whether the work environment is hostile, analyze the frequency of the unwelcome conduct, its severity and whether it interferes unreasonably with the victim’s work performance.
• Workplace Internet and e-mail misuse are other sources that can give rise to sexual harassment claims.

There are a number of workplace behaviors that are generally viewed as sexual harassment when they are unwanted. They include:

• Direct or indirect threats for unwanted sexual activity
• Sexual innuendoes or jokes
• Asking about or commenting on a person’s sexual activities
• Sexist remarks about a person’s clothing or body
• Sexually suggestive sounds or gestures, including sucking noises, winking and throwing kisses
• Pestering a person for dates or sexual behavior
• Touching, patting, striking, squeezing, tickling or brushing against a person
• Giving a neck or shoulder massage
• Rating a person’s sexual attractiveness
• Ogling or leering, unwanted leaning over or cornering
• Spreading sexually explicit rumors
• Graffiti about a person’s sexuality
• Name calling such as “bitch,” “slut,” “whore”
• Sexual ridicule
• Written or oral communications of a sexual nature
• Pejorative comments about males or females in general
• Displaying pictures, calendars, cartoons or other materials with sexual content
• Stalking
• Attempted or actual sexual assault

Who in a workplace can be a target of sexual harassment?

1. Both males and females may be harassed.
2. The harassed person may be the intended target or a bystander.
3. Watch for incidents involving same-sex or opposite-sex harassment.

Those guilty of harassment can include any of the following:

1. Supervisors
2. Co-workers
3. Third party service providers/recipients – contractors, suppliers, vendors, repair persons, customers

This concludes Part 1 in our series on this topic. In our next segment, we will discuss the legal ramifications for employers when sexual harassment becomes an issue in the workplace.

If you are an employer in Connecticut and need guidance on the topic of sexual harassment, contact the attorneys at Kainen, Escalera & McHale. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys has over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

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