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Sexual Harassment

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Sexual harassment is a prohibited form of discrimination in the workplace. Although pages of guidelines exist and there are a many court decisions on the subject, there is much confusion as to what exactly constitutes illegal sexual harassment.

Civil rights legislation has made sexual harassment of either sex prohibited behavior and permits the harassed employee to bring a lawsuit against the employer who knew or should have known about the harassment. Prohibited conduct is anything that makes the target feel uncomfortable, including:

  • sexual advances
  • request for sexual favors
  • verbal or physical conduct of a sexual nature which affects the target's employment
  • conduct creating an offensive, hostile and intimidating work environment
  • unreasonable interferences with the target's work performance

Sidebar: Sexual harassment can be same-sex. The victim and the harasser do not have to be of opposite sex.

When does a claim for sexual harassment have to be filed?

Within 180 days after the harassing act. However, it is not uncommon for the harassment to have extended over a period of time and consisted of many different incidents.

Sidebar: A harassment claim can consist of one incident or a series of incidents. The latter is a case of "continuing violations" where repeated acts of harassment have occurred. The complaint can go as far back in time as 300 days in its allegations, as long as it is filed within 180 days of the most recent incident.

How do I prove a sexual harassment claim?

You are required to show the following elements:

  • you were subjected to unwanted sexual harassment in the form of sexual advances or verbal or physical conduct of a sexual nature;
  • the harassment was based on your sex;
  • the harassment created an intimidating, hostile or offensive working environment which unreasonably interfered with your ability to work; and
  • your employer knew or should have known the harassment existed.

Can only a supervisor harass an employee?

No. Co-workers, customers, contractors and vendors can all violate the prohibitions against sexual harassment.

TIP: In the case of nonemployee harassment, notify a supervisor as soon as possible; otherwise, your employer can claim it did not have knowledge of the incident nor any reason to be aware of it at all.

What is a "hostile environment"?

It is a workplace environment where the harassment is:

  • frequent;
  • severe;
  • physically threatening or humiliating; and
  • your ability to work is compromised or affected.

The existence of an actionable hostile work environment is case-specific, and some courts are more lenient than others as to what is acceptable behavior. Some examples of behavior creating an intimidating and hostile work environment include:

  • specific descriptions of sex acts;
  • rubbing and touching breasts, crotch or buttocks;
  • displaying pornographic pictures and photos;
  • imitating sexual acts;
  • obscene gestures;
  • daily repeated use of vulgar language;
  • leaving inappropriate and offensive messages on voicemail and pagers;
  • behavior so offensive that the employee hides from the offender and/or changes his or her work schedule; and
  • behavior so offensive it is noticed by other employees.

I had a sexual relationship with my boss. Do I have a claim for sexual harassment?

No. The fact that a consensual sexual relationship once existed does not subject you a hostile work environment.

I am being sexually harassed, but my work environment is not hostile. Do I have a claim for sexual harassment?

Yes. You may have a claim for quid pro quo harassment, if the harassment has affected your compensation or the terms, conditions or privileges of your employment. In other words, if you have been a victim "sexual blackmail" in order to keep your job, salary or office, you have a claim.

TIP: All employers should create a written anti-harassment policy. Ideally, the policy should be posted in a prominent place on the premises and set out in an employee handbook signed by the employee.

I complained to the human resources department of my company about some incidents of sexual harassment. They took steps to discipline the offender but I am not satisfied. Can I still file a claim?

No. Your employer is no longer liable for the previous acts of sexual harassment since steps were taken to correct and prevent the behavior. However, if the incidents continue after the discipline has occurred, then you should file another complaint to start the process again.