The following Q & A has been selected from Employment Law Answer Book, co-authored by Mark R. Filipp.
Q 4:80 What types of conduct are considered sexual harassment under Title VII?
Title VII states:
It shall be an unlawful employment practice for an Employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin. [Title VII § 703(a)(1), 42 U.S.C. § 2000e-2(a)]
In Meritor Savings Bank v. Vinson [477 U.S. 57 (1986)], the Supreme Court affirmed the EEOC’s guidelines, which establish sexual harassment as a form of sex discrimination. The EEOC Guidelines on Discrimination Because of Sex, published in 1980, defines actionable sexual harassment under Title VII as follows:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
(1) Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment;
(2) Submission to or rejection of such conduct is 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. [29 C.F.R. § 1604.11]
The behavior described in the first two sections is generally referred to as quid pro quo sexual harassment. Conduct referred to in the third is generally known as hostile work environment sexual harassment. These two types of sexual harassment differ both in theory and in potential liability. Employers need to understand the two theories and their differences to properly assess their liability and exposure to sexual harassment claims.