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Harassment Law Information
Harassment refers to a wide spectrum of offensive behavior.
When the term is used in a legal sense it refers to behaviors that are found
threatening or disturbing, and beyond those that are sanctioned by society. In
societies which support free speech, only the more repetitive, persistent and
untruthful types of speech qualify legally as harassment. sexual harassment
refers to persistent and unwanted sexual advances, typically in the workplace,
where the consequences of refusing are potentially very disadvantaging to the
victim.
Both because the term is used in common English, and because
where the term is defined by law, the law varies by jurisdiction, it is
difficult to provide any exact definition that is accepted everywhere. In some
cultures, for instance, simply stating a political opinion can be seen as
unwarranted and a deliberate attempt to intimidate - in a totalitarian society
any such statement could be interpreted as an attempt to involve someone in
rebel activity or implicate them in same, with the implication that if they
refuse, they are putting their own life in danger.
More usually, some label such as "anti-social" or related to
treason is used to label such behavior - it being treated as an offense against
the state not the person. This resembles the use of psychiatry to imprison
dissidents which is common in many countries. Another example is that under some
versions of Islamic Law merely insulting Islam is considered to be a harassment
of all believers, and in Japan insulting any faith is usually considered taboo,
and has legal sanctions. There are also extreme and self-serving definitions
employed by anti-defamation groups, and also more mainstream groups like NOW.
Because of these variations, there is no way even within one society to provide
a truly neutral definition of harassment.
Sexual Harassment
Sexual harassment is harassment of a sexual nature, typically in the workplace
or other setting where raising objections or refusing may have negative
consequences. In American employment law, it is any unwelcome sexual advance or
conduct on the job, having the effect of making the workplace intimidating,
hostile or offensive. Sexual harassment is considered a form of illegal
discrimination.
The definition of the phrase Sexual Harassment can be broad and controversial,
depending on each individual's opinion of what harassment is. While typical
sexual harassment behavior usually includes unwanted touching of a co-worker's
private parts, lewd comments, talk about gender superiority, sexual jokes, etc.,
etc., some companies have reported that they have had to fire employees (after a
co-worker has complained of sexual harassment) for such actions as telling the
complaining co-worker how good he or she looks for that co-worker's date with
another person, or for simply handing what seemed, to the fired employee, to be
just a harmless complement.
Instances Of Sexual Harassment
Sexual harassment can occur in a number of ways, such as:
* The harasser can be the victim's supervisor, a client, a co-worker, a teacher
or professor, a schoolmate, or a stranger.
* The victim does not have to be the person directly harassed but can be anyone
who finds the behavior offensive and is affected by it.
* While adverse effects on the victim are common, this does not have to be the
case for the behavior to be unlawful.
* The victim can be male or female. The harasser does not have to be of the
opposite sex.
* The harasser's behavior must be unwelcome.
* The harasser may be completely unaware that their behavior is offensive or
constitutes sexual harassment, or they may be completely unaware that their
actions could be unlawful.
Definitions Of Sexual Harassment
Two specific legal definitions of sexual harassment have been defined:
* quid pro quo (Latin: something for something)
* hostile work environment
The concept of sexual harassment has both colloquial and legal meanings. Many
more people have experienced sexual harassment than have a solid legal case
against the accused. For many businesses, preventing sexual harassment, and
defending its managerial employees from sexual harassment charges, have become
key goals of legal decision-making. Supreme Court Justice Clarence Thomas has
pointed out that sexual harassment is not a freestanding tort, but is only, in
its legal sense, a subcategory of employment discrimination.
Prima Facie Case for Sexual Harassment
To establish a prima facie case for sexual harassment, you must show that:
There were unwelcome sexual advances, requests for sexual favors and other
verbal or physical conduct of a sexual nature when
1. Submission to such conduct was 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 was used as the
basis for employment decisions affecting such individual, or
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.
Prima Facie for Sexual Harassment, Hostile Environment
To establish a prima facie case for hostile work environment sexual harassment,
the alleged victim must prove:
1. He or she suffered intentional discrimination because of his/her sex.
2. The discrimination was pervasive and regular.
3. The discrimination detrimentally affected him or her.
4. The discrimination would detrimentally affect a reasonable person of the same
sex.
5. Management knew about the harassment, or should have known, and did nothing
to stop it.
Prima Facie for Retaliation
To establish a prima facie case of retaliation, a person must show by a
preponderance of evidence that
1. The person engaged in a protected activity known to the employer.
2. The employer thereafter subjected the complaining party to an adverse
decision.
3. There was a causal link between the protected activity and adverse employment
decision.
Protected activities usually encompass making discrimination and harassment
activities known to management, participating in Managing Diversity programs,
assisting another employee with a discrimination complaint and other similar
activities.
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