What distinguishes hostile work environment harassment from quid pro quo harassment is that a tangible employment action or economic injury, such as a discharge, demotion or a change in terms of employment, need not occur for a victim to make a claim of hostile work environment harassment. Examples of harassing behavior that can create a hostile or abusive work environment are the display of pornographic pictures or cartoons, touching and grabbing, sexual remarks or jokes and the physical interference with movement. Courts have held employers and harassers liable for damages in cases of harassment that creates an abusive work environment in part because psychologists in the United States and in other countries have conducted research that demonstrates that women can suffer psychological harm from harassment whether or not it results in the loss of a job benefit. See for example the research of Louise Fitzgerald. See also Chelsea R. Willness, et al., Journal of Personnel Psychology, A Meta-Analysis of The Antecedents and Consequences of Workplace Sexual Harassment (2007).
It is important to note that sexual harassment that creates a hostile or abusive work environment can include behavior of supervisors, coworkers, and non-employees at a work site or work related site. In addition, the victim of the harassment need not necessarily have been the direct target of the behavior.
Most legal regimes that recognize this form of harassment consider harassment to be hostile or abusive only if it is severe and/or frequent or pervasive. For more information on this standard, please see Hostile Work Environment Sexual Harassment Must Be Severe and/or Frequent or Pervasive.
Remedies for victims of hostile work environment sexual harassment may include recovery of compensatory damages such as medical expenses, future economic loss and loss of enjoyment of life. Punitive damages may also be awarded to successful claimants. In the United States, such damages are awarded only if she or he establishes that the employer acted with malice or reckless indifference to her or his rights. For more information on remedies for victims of hostile work environment sexual harassment, see Sexual Harassment—Law and Policy: Domestic Laws.
Once a sexual harassment claimant establishes a case of sexual harassment that meets the legal standards for hostile work environment sexual harassment, employers generally have the burden of proving that the harassment did not occur. For more information on the burden of proof applied in these cases see Sexual Harassment—Law and Policy: Domestic Laws and Sexual Harassment—Law and Policy: Regional Law and Standards.
There are varying standards of liability applied to employers in cases of hostile work environment sexual harassment. Employers are generally held liable for such harassment if a supervisor is the harasser. In cases of supervisor harassment in the United States, an employer may avoid liability if it exercised reasonable care to prevent or correct promptly any harassing behavior and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. If a co-worker is involved, a U.S. employer is generally liable if it knew or should have known of the misconduct, unless it can show that it took immediate and appropriate corrective action. For more information on standards of liability see Sexual Harassment—Law and Policy: Domestic Laws. Under Canadian law, "an act of harassment shall not, however, be considered to be an act committed by an employer if it is established that the employer did not consent to the commission of the act and exercised all due diligence to prevent the act from being committed and, subsequently, to mitigate or avoid its consequences" From Canadian Human Rights Commission, Harassment and the Canadian Human Rights Act.
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