Sexual Harassment that Creates a Hostile Work Environment

last updated February 2019

Sexual harassment that creates a hostile or abusive work environment is prohibited by law in the United States. This form of sexual harassment 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. Examples of harassing behavior that can create a hostile or abusive work environment include the display of pornographic pictures or cartoons, touching and grabbing, sexual remarks or jokes and the physical interference with movement. A plaintiff does not need to demonstrate that a tangible employment action or economic injury, such as a discharge, demotion or a change in terms of employment has occurred in order to have an actionable claim for hostile work environment harassment.

Courts have held both employers and harassers liable for damages in cases of harassment that creates an abusive work environment. These damages awards stem in part from research which demonstrates that women can suffer psychological harm from harassment whether or not it results in the loss of a job benefit.[1]

To prove an actionable claim of hostile work environment, the harassment must be “sufficiently severe or pervasive ‘to alter the conditions of the victim’s employment and create an abusive working environment.’”[2] Under this standard, a single incident may constitute harassment, especially if the incident is prolonged, offensive and very serious in nature, e.g., sexual touching or assault. A combination of events with varying amounts of seriousness and frequency may also constitute harassment.

The Objective/ Reasonable Person Standard

An important element in a claim of harassment creating a hostile work environment is the determination of what actions create a “hostile” or “abusive” environment and the standard used to judge the environment. When discussing the appropriate standard, the U.S. Supreme Court has held:

[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances. These may include 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. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required.[3]

In a later case, Oncale, the Court further explained that “the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances.”[4]

Some circuits have expressly adopted the Supreme Court’s Oncale “reasonable person in the plaintiff’s position” analysis.[5] Other circuit courts have relied on Oncale for the proposition that the severity of the harassment must be analyzed in the context of the plaintiff’s circumstances.[6] Other courts, most frequently those in the Ninth Circuit, apply a “reasonable woman” standard.[7] In adopting this standard, the Ninth Circuit observed:

Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive.[8]

Many scholars agree with the “reasonable woman” analysis, positing that the reasonable person standard may not be appropriate because studies have shown that women define sexual harassment more broadly than do men. These scholars believe that men and women have different views of sexual harassment because women fear sexual coercion to a greater degree than men and are cognizant of the way in which sexually harassing behaviors have the effect of devaluing their role in the workplace.

Other feminist scholars believe that the reasonable woman standard is demeaning, protective, paternalistic and poses the risk of essentialism. Application of the standard may reconstruct stereotypes about women, with the danger that the views of the wealthy, white, heterosexual majority of the group would be deemed to represent the whole group.[9] One study found little difference in what men and women genders believe constitutes the more serious types of harassment, but did find gender-based disagreement about the more subtle forms of harassing behavior.[10]

Burden of Proof

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.

Employer Liability

There are varying standards of liability applied to employers in cases of hostile work environment sexual harassment, depending on the identity of the harasser. Employers are generally held liable if a supervisor is the harasser. However, the employer may be able to escape liability or limit damages by establishing a specific affirmative defense. To establish this defense, an employer must show that it exercised reasonable care to prevent and correct promptly any harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.[11]

If a co-worker or non-employee is involved, an employer is liable if it—or any of its agents or management level employees—knew or should have known of the misconduct. The employer can escape liability, however, if it can show that it took immediate and appropriate corrective action. The standard of liability is the same for harassment committed by non-employees such as clients or vendors of the employer.

In non-employee cases, however, the Commission also takes into account "the extent of control and any other legal responsibility which the employer may have with respect to conduct of [harassing] non-employees."[12] This principle was illustrated in a case where the Ninth Circuit affirmed the dismissal of a claim of sexual harassment against co-workers where there was no witness testimony or report filed by the victim to indicate that the employer or managing employees should have known about the harassment.[13]

Remedies for Sexual Harassment

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 a claimant establishes that the employer acted with malice or reckless indifference to her or his rights.

Proof of Injury

Under many civil sexual harassment laws, especially tort laws, the sexual harassment complainant is required to prove psychological or other injuries caused by the sexually harassing behavior before recovering damages from her or his harasser or employer. This requirement has served to deter many victims of sexual harassment from accessing the legal system and pursuing sexual harassment claims. Many victims of sexual harassment, like victims of sexual assault, fear that they will be judged or made to feel shame about their mental health or sexual history if they are required to undergo psychological/physical testing and related cross examination.

In response to this fear and to encourage victims to come forward with sexual harassment claims, the United States, among other countries, has determined through case law that proof of psychological or physical injuries is not necessary to recover damages from an employer under civil sexual harassment law. Rather, the U.S. courts in "hostile work environment" cases have required proof only that the harassing behavior was unwelcome and that the behavior would have affected negatively or interfered with the work environment of a reasonable person under similar circumstances. In guidance, the U.S. Equal Employment Opportunity Commission noted:

In Harris v. Forklift Sys., Inc., No. 92-1168 slip op. (Nov. 9, 1993), the Supreme Court considered whether a plaintiff was required to prove psychological injury in order to prevail on a cause of action alleging hostile environment sexual harassment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ss. 2000e et seq. A unanimous Court held that if a workplace is permeated with behavior that is severe or pervasive enough to create a discriminatorily hostile or abusive working environment, Title VII is violated regardless of whether the plaintiff suffered psychological harm. The Court's decision reaffirms Meritor Savings Bank v. Vinson, 477 U.S. 57, 40 EPD 36,159 (1986), and is consistent with existing Commission policy on hostile environment harassment.[14]

[1] See for example the research of Louise FitzgeraldSee also Chelsea R. Willness, et al., Journal of Personnel Psychology, A Meta-Analysis of The Antecedents and Consequences of Workplace Sexual Harassment (2007).

[2] Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986).

[3] Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

[4] Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75 (1998).

[5] See, e.g., Perez v. Horizon Lines, Inc., 804 F.3d 1, 7 (1st Cir. 2015); Passananti v. Cook County, 689 F.3d 655, 666 (7th Cir. 2012); Harsco Corp. v. Renner, 475 F.3d 1179, 1187 (10th Cir. 2007).

[6] See Henry v. CorpCar Servs. Houston, Ltd., 625 F. App’x 607, 612–13 (5th Cir. 2015) (“Considering the conduct in light of the ‘social context,’ Oncale, 523 U.S. at 82, 118 S.Ct. 998[,] the severity of the harassment is apparent.”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1302 (11th Cir. 2012) (“[A] reasonable juror also might conclude that, from an objective point of view, the confrontation was intimidating to an African-American employee.”).

[7] See, e.g., Anderson v. CRST Int’l, Inc., 685 F. App’x 524, 526 (9th Cir. 2017); Kimber-Anderson v. City of Newark, 502 F. App’x 210, 213 (3d Cir. 2012); Ganucheau v. E-Systems Mgmt., LLC, No. CV 11-01470-PHX-NVW, 2012 WL 1313080, at *2 (D. Ariz. Apr. 17, 2012); Egelhoff v. Wyndham Resort Dev. Corp., No. 2:11-cv-00007-BLW, 2012 WL 1149299, at *7 (D. Idaho Apr. 4, 2012); Panelli v. First Am. Title Ins. Co., 704 F. Supp. 2d 1016, 1032 (D. Nev. 2010); McDonough v. Cooksey, No. 05-cv-00135, 2007 WL 1456202, at *8 (D.N.J. May 15, 2007).

[8] Ellison v. Brady, 924 F. 2d 872 (9th Cir. 1991).

[9] Martha Chamallas, Introduction to Feminist Legal Theory 90-91 (2003); William Petrocelli & Barbara Kate Repa, Sexual Harassment on the Job: What It Is & How to Stop It (1998)

[10] A Meta-Analytic Review of Gender Differences in Perceptions of Sexual Harassment, Journal of Applied Psychology, Maria Rotundo et al., October 2001

[11] Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); and U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice No. 915.002 (June 18, 1999).

[12] From U.S. Equal Employment Opportunity Commission, Guidelines on Discrimination Because of Sex, 29 C.F.R. s. 1604.11(d) and (e). See also U.S. Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, Notice No. 915.002 (June 18, 1999); Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998);

[13] Burrell v. Star Nursery, Inc.,170 F.3d 951 (9th Cir. 1999)