Applying the Definition

• While it is easy to define sexual harassment, it is very difficult to apply that definition to a set of particular facts. Court opinions can seem inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts particularly in hostile work environment cases where it is more difficult than in quid pro quo situations to prove that harassment occurred.

  Example: Courts may disagree on whether the posting of one piece of pornographic or sexually offensive material is sufficient to create a hostile work environment.

  Example: One court may hold that an unwelcome advance (such as an employee asking another coworker out on a date) does not constitute sexual harassment because it did not rise, in that particular case, to the level of pervasive behavior. In another case, however, the court may rule that based on the specific facts of that situation, a rebuffed request for a date could constitute sexual harassment.

• The U.S. Supreme Court has held that employers may defend themselves in hostile work environment cases brought against them for actions of a supervisor or managerial-level employee by arguing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior. Employers may also argue that they are not liable if an employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment.

Factors for Review

Factors a court will consider in hostile work environment cases include:

• Frequency of the alleged inappropriate behavior.
• Severity of the behavior.
• Conduct of the victim.
• Context of the alleged harassment.
• Size of the employer's business.
• Nature of the employer's business.
• In a hostile work environment claim, whether a reasonable person in the position of the plaintiff would have thought the environment to be hostile.

  Note: If the alleged victim willingly participated in sexual banter or risqué jokes, it will be more difficult for them to prove that they have actually been harassed.