The Common Law

Public awareness of sexual harassment in the workplace has been on the rise ever since Anita Hill asserted sexual harassment claims against Clarence Thomas in 1991. Despite increased awareness, many people are unclear about how sexual harassment is defined and what kind of behavior constitutes sexual harassment.

The U.S. Equal Employment Opportunity Commission describes sexual harassment as unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature when this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

Applying this general definition, courts and government agencies (after reviewing the relevant facts and circumstances of each case) have found the following types of conduct to be illegal sexual harassment:

• repeated sexual innuendo, obscene or off-color jokes, lewd remarks and language (some courts have focused on a pattern of repeated behavior and held that only one remark was not the type of behavior that supported a sexual harassment claim);

• sexually explicit material in letters, notes, e-mails, etc.;

• persistent unwanted sexual overtures or propositions, subtle or overt pressure for sexual favors;

• displaying pornographic pictures, calendars, cartoons, or other sexual material in the workplace;

• coerced or unwelcome touching, patting, brushing up against, kissing, stroking, massaging, tickling, etc.;

• coerced sexual intercourse (e.g., as a condition of employment or advancement).

In addition to being morally wrong, sexual harassment in the workplace may violate both federal and state law. Read next week's column to learn more about options for an employee dealing with sexual harassment.