For the harassment to be considered quid pro quo the harasser must be in a position to influence employment actions. Employers are held liable for quid pro quo harassment since they are responsible for the actions of supervisors, managers and agents. It can be deemed that these individuals were acting directly on behalf of their employer.
The second type of sexual harassment is hostile work environment harassment. There are all types of behavior that can create what employees deem a “hostile work environment.” Anyone can create a hostile work environment and in this situation the harasser does not have to be a supervisor. According to the website, HostileWorkEnvironmentGuide.com a hostile work environment is caused by unwelcome conduct in the workplace. It must be caused by discriminatory workplace harassment based on race, color, religion, national origin, disability, genetics, age or sex; or it must be caused by retaliation in violation of a discrimination law. Discussion of sexual activity, unwelcome touching, indecent gestures, sexual jokes and the use of rude and crude language falls under the umbrella of hostile work environment. When the conduct unreasonably interferes with an individual’s work performance it is classified as a hostile work environment. The behavior must be so “pervasive or severe” that a reasonable person would find it hostile or abusive. (3)
What is the difference between express and implied sexual behavior?
Just like in Contracts, expressed is different from implied sexual behavior in that expressed sexual behavior is clearly intended and open while implied sexual behavior is inferred by situations and circumstances. Expressed sexual behavior is clearly stated by words or actions. However, implied sexual behavior is not as clear and formally stated. As with contracts, both expressed and implied sexual behaviors can be considered part of sexual harassment. Many times when a person is engaging in implied sexual behavior, they don’t necessarily realize that they are acting in a sexual manner or that the receiving party could be considering the behavior sexual and unwanted. Implied sexual behavior may be harder to prove because the accused may view the actions differently than how the accuser may view their intentions on the situation. The facts may be implied but the actions are not expressed; which is not formally or explicitly stated in words. (4)
Why are supervisors and not fellow employees subject to liability for quid pro quo sexual harassment?
Supervisors or persons in positions of power are the only ones that are subject to quid pro quo sexual harassment. Quid pro quo sexual harassment occurs when a manager or supervisor asks for sexual favors in return for the consideration of continuation of employment or when the acceptance or rejection to the request is used for the basis of employment decisions affecting the employee. Since the basis for quid pro quo sexual harassment are mostly directed towards a person that has the power to make employment decisions over the individual, the only ones that are subject to liability for this type of sexual harassment are the supervisors or above. A fellow employee does not have the power to control an individual’s employment. They may indirectly affect their coworker’s employment status but they don’t have the power to make those decisions directly. (5)
What is the reasonable person standard in this context?
A person who is experiencing a repeated pattern of the above may feel like such behaviors make it almost impossible to be productive at work. Courts apply the reasonable person standard test asking "what would a reasonable person think is out of bounds or interferes with work?" If a "reasonable person" would consider the conduct sufficiently severe to create an abusive working environment, a violation of Title VII has occurred. In this case, the Plaintiff is arguing that the behavior made it impossible for him to get the promotion and...
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