What is sexual harassment?

If an employer does not have any sexually discriminatory employment practices but creates a hostile work environment for one gender or allows one to continue, is it still liable for sex discrimination? Does a female employee have any legal recourse for sexually abusive or derogatory comments or for being requested sexual favors?

Sex discrimination includes sexual harassment, and sexual harassment is just as unlawful. Sexual harassment includes unwelcome sexual advances and requests for sexual favors. It also includes sexually offensive or vulgar language and other verbal, visual, or physical conduct motivated by sex or gender. Such conduct is prohibited by Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code (formerly known as the Texas Commission on Human Rights Act).

Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code prohibit discrimination based on sex. While the statutes do not explicitly mention sexual harassment, sexual harassment is prohibited and included under sex discrimination. While sex discrimination focuses on discrimination in hiring, firing, promotion, and pay based on sex, sexual harassment focuses on conduct in the workplace that is detrimental or hostile to one gender.

Title VII applies to employer with 15 or more employees, and it protects only employees and not independent contractors. Who is and is not an employee depends on whether the employer has the right to control how the worker performs his job and the economic realities of the worker’s dependence on his employee.

Further, sexual harassment is not limited to male on female sexual harassment. Title VII also prohibits female on male sexual harassment and same-sex sexual harassment.

There are two types of sexual harassment: hostile work environment sexual harassment and quid pro quo sexual harassment.

Hostile Work Environment Sexual Harassment

A supervisor constantly makes derogatory and sexual remarks to one of his female subordinates causing her stress and anxiety that prevents her from doing her job to the best of her ability. This is an example of hostile work environment sexual harassment.

Sexual harassment that interferes with an individual’s work performance or that creates an offensive, intimidating, or hostile work environment is prohibited under Title VII. The federal circuit court that has jurisdiction over Texas cases defines sexual harassment as “sexually discriminatory intimidation, ridicule, or insults that are sufficiently sever and pervasive so as to alter the conditions of employment and create an abusive working environment.” The harassment must be both unwelcome and based on sex or gender. Further, it must be severe and pervasive—isolated incidents will not rise to the level of sexual harassment.

For example, a female employee can sue her employer for a co-worker’s daily groping. She can sue if an employer allows a coworker to constantly ogle her and send her sexually charged messages. Similarly, commenting on an employee’s physical appearance and making derogatory remarks can lead to a sexual harassment claim.

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment is when a supervisor forces an employee to choose between submitting to request sexual favors or suffering an adverse employment action. For example, a supervisor cannot say to an employee: “sleep with me and you’ll get the job.” Similarly, an employer cannot hold a promotion over an employee’s head in return for sexual favors. An employer also cannot fire an employee for refusing his sexual advances.