Frequently Asked Employment Law Questions - Sexual harassment

Sexual harassment is a form of gender discrimination.  Sexual harassment is unlawful under federal law (Title VII of the Civil Rights Act of 1964) and Illinois law (the Illinois Human Rights Act).

There are two general types of sexual harassment: (1) hostile work environment, and (2) quid pro quo.

Hostile Work Environment

A hostile work environment may arise from a variety of sexually offensive conduct.  Examples of sexually offensive conduct include sexually offensive language in the workplace, indecent gestures, crude language, unwanted sexual advances, unwanted flirtation, physical touching, staring or ogling, lewd, suggestive or obscene remarks, discussing sexual activities, commenting on physical attributes, sexually offensive jokes, displaying sexually suggestive pictures, electronic communications containing sexually explicit images or language  (emails, text messages, instant messaging, etc.), or pornography in the workplace.

The sexually offensive conduct must be: (1) unwelcome, (2) based on the employee’s protected status, (3) subjectively offensive to the employee, and (4) objectively severe and pervasive enough to create a work environment that a reasonable person would find hostile or abusive.

Whether the conduct is sufficiently pervasive depends on the particular facts and circumstances of each situation.  Factors include: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening or humiliating; (4) whether the conduct unreasonably interfered with the employee’s work performance; (5) the effect on the employee's psychological well-being; and (6) whether the harasser was a supervisor or manager.

Quid Pro Quo

Quid pro quo sexual harassment occurs when an employment decision is based on an employee's acceptance or rejection of unwelcome sexual advances, sexual propositions, or requests for sexual favors.  This type of harassment is usually committed by a manager or supervisor who has power or authority over the victim’s employment.  The quid pro quo harasser exploits the implied or explicit threat of adverse employment decisions, such as termination, demotion, or non-promotion, or the promise of favorable employment decisions, such as promotion, salary increases, or bonuses.  Examples of quid pro quo sexual harassment include: (1) terminating a subordinate for rejecting sexual propositions; (2) requiring a subordinate to submit to unwelcome sexual advances as a condition of continued employment; and (3) offering preferential treatment to a subordinate in exchange for sexual favors.

Yes, same-sex sexual harassment is illegal.

Yes, the victim may be a male employee who is sexually harassed by a female employee or manager.

When an employer receives a complaint of alleged sexual harassment from an employee, the employer has a legal obligation to promptly investigate the complaint and take appropriate remedial action.  What action is appropriate will depend upon the particular facts and circumstances of each situation.

Under the Illinois Human Rights Act, an individual sexual harasser faces personally liability for sexual harassment.  However, under federal law, there is no personal liability for sexual harassment.

Yes.  It is in an employer’s best interests to maintain a written sexual harassment policy.  By doing so, the employer establishes an orderly process to handle sexual harassment complaints from its employees.  An employee who fails to report sexual harassment under an employer’s sexual harassment policy, and later files a charge or lawsuit, hands the employer a valuable legal defense to the sexual harassment claim.

Yes.  Reporting sexual harassment triggers the employer’s obligations to investigate and remedy the sexual harassment.  By not reporting, the employee misses an opportunity to resolve the situation through the employer’s sexual harassment policy.  Non-reporting also creates future obstacles for a sexual harassment claim.  The worst thing a sexual harassment victim can do is not object to or report the sexual harassment, especially for a long period of time.

No.  It is unlawful for an employer to terminate an employee in retaliation for reporting or opposing sexual harassment.  An employer who does so may face a lawsuit for retaliatory discharge.

An employer is not obligated to retain an employee who reports or opposes sexual harassment, and may terminate the employee for legitimate, non-retaliatory reasons.  However, the timing of the termination in relation to the protected activity is always a sensitive matter.  Close temporal proximity may raise an inference of retaliation.