“Hostile work environment” sexual harassment occurs when an employee is subject to unwelcome advances, sexual innuendos, or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.
Hostile work environment harassment requires, under the law, a link between the hostility by a coworker or supervisor that is based on a protected characteristic, such as gender, disability, race, or creed. Just because a boss is mean does not necessarily constitute a legal claim for hostile work environment. On the other hand, if the motivation of the boss is based on circumstantial evidence of sexual harassment or discrimination based on a disability or some other suspect classification, then an employee may have a claim for hostile work environment harassment.
The further requirements for hostile work environment sexual harassment are that the harassment is either “serious” and/or “pervasive”. “Serious” generally means that there was an unwanted and offensive touching or threat thereof. “Pervasive” means sexually harassing conduct that consists of more than a few isolated incidents, that is hostile or abusive to employees because of their sex, and frequent enough to alter the conditions of employment and create an abusive work environment. Note that a sexually objectionable environment must be both objectively and subjectively offensive. That means that not only must a particular plaintiff perceive the workplace as hostile or abusive, but also that a reasonable person, considering all the circumstances, would share the same perception of a hostile or abusive workplace.
This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment and create an abusive environment. A single instance of sexual harassment in the hostile work environment context may be sufficient if the conduct is severe enough, but repeated instances increase the pervasiveness of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.
It is possible for an employee to make a hostile work environment claim when the harassment is not directed to the complaining employee, if the harassment permeated the complaining employee’s work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics (e.g., age, race, gender) as the complaining employee.
Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace.
In order to prevail on a hostile work environment sexual harassment claim against the harasser and the employer, a plaintiff must establish that:
- The plaintiff was subjected to unwelcome sexual harassment;
- The harassment was based on the plaintiff’s sex;
- The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
- The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer.