Sexual harassment cases can be quite difficult to prosecute, so we must be very selective. Actionable sexual harassment in the legal sense is different than the layman’s interpretation. An employer is liable for sexual harassment only if it knew or should have known of the harassment. Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993). To establish a claim of hostile work environment, a plaintiff must prove (1) they belong to a protected group; (2) they were subjected to unwelcome sexual harassment; (3) the harassment was based on sex; ( 4) the harassment affected a term, condition or privilege of employment; and (5) their employer knew or should have known of the harassment and failed to take prompt remedial action. Hockman v.Westward Commc ‘ns, LLC, 407 F.3d 317, 325 (5th Cir. 2004).
A plaintiff asserting a sexual harassment claim must demonstrate that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive enough to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17. 21 (1993) (internal quotations and citations omitted) (emphasis added). Courts look at all the circumstances of a given workplace to evaluate whether an environment is sufficiently hostile or abusive to trigger liability, including “the frequency of the discriminatory conduct its severity, whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Stewart v. Mississippi Transp. Com’n, 586 F .3d 321, 330 (5th Cir. 2009).
An obvious case of actionable sexual harassment occurs when someone with power over another employee (owner, manager, etc.) requests sexual actions in exchange for preferential treatment, such as a promotion, extra benefits, etc. Other cases are not so clear. For example, if a coworker comments on another coworker’s appearance or makes a single crude comment, even though sexual in nature, it most likely will not rise to the level of actionable sexual harassment. For further examples and guidelines, the EEOC’s Policy Guidance on Current Issues of Sexual Harassment can be found at the following link: https://www.eeoc.gov/laws/guidance/policy-guidance-current-issues-sexual-harassment.
For further questions or a free consultation regarding a possible sexual harassment case, please call our office today to schedule an appointment at 817-924-8600.