Sexual harassment is unwelcome or unwanted sexual conduct that is either very serious or occurs frequently.
- The harasser may be another employee, a supervisor, the company owner or even a customer.
- The harasser may be male or female.
- The sexual conduct can be verbal, physical, in writing, or pictures. Illegal sexual harassment creates a hostile or intimidating work place that interferes with an employee's job performance.
The EEOC issued guidelines declaring sexual harassment a violation of Section 703 of Title VII, establishing criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment, defining the circumstances under which an employer may be held liable, and suggesting affirmative steps an employer should take to prevent sexual harassment.
- The EEOC has applied the Guidelines in its enforcement litigation, and many lower courts have relied on the Guidelines.
The EEOC's Policy Guidance on Current Issues of Sexual Harassment include two types of sexual harassment: "quid pro quo" and "hostile environment."
- "Unwelcome" sexual conduct constitutes sexual harassment when "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment," 29 C.F.R § 1604.11 (a) (1).
- "Quid pro quo harassment" occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual," 29 C.F.R § 1604.11(a)(2).1 29 C.F.R. § 1604.11(a)(3).2
- The Supreme Court's decision in Vinson established that both types of sexual harassment are actionable under section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), as forms of sex discrimination.
- Although "quid pro quo" and "hostile environment" harassment are theoretically distinct claims, the line between the two is not always clear and the two forms of harassment often occur together.
The issue of whether sexual harassment violates Title VII reached the Supreme Court in 1986 in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 40 EPD ¶ 36,159 (1986). The Court affirmed the basic premises of the Guidelines as well as the EEOC's definition.
After Vinson developing law and guidance included:
- determining whether sexual conduct is "unwelcome";
- evaluating evidence of harassment;
- determining whether a work environment is sexually "hostile";
- holding employers liable for sexual harassment by supervisors; and
- evaluating preventive and remedial action taken in response to claims of sexual harassment.