Sexual harassment in the workplace is basically three forms of activity:
- Requests for sexual favors in exchange for receiving positive effects to your job or preventing negative effects to your job;
- Unwelcome sexual advances; and
- Verbal and/or physical bullying based upon one’s sex or gender.
Sexual harassment perpetrator can be a direct supervisor/manager, some other person in management, or a co-worker. It can be a man against woman, woman against man, man against man and woman against woman. It is illegal workplace discrimination based upon one’s sex or gender under federal and Texas law. Unlawful sexual harassment comes in two forms: quid pro quo and hostile work environment.
Quid pro quo sexual harassment in Texas
Quid pro quo sexual harassment is the tit-for-tat form of harassment. The boss requests the subordinate perform some sex act or engage in a romantic liaison in exchange for some benefit or to prevent losing some benefit of employment. In this form of sexual harassment, the perpetrator is almost always in management. A co-worker usually has no power to offer a benefit or enforce a detriment. It is possible that your boss tells you to have sex with a co-worker but that is a rare situation. In most cases the supervisor intends to enjoy the sexual favor.
Hostile work environment discrimination claims in Texas
Hostile work environment sexual harassment is discrimination based on workplace conduct related to an employee’s gender or sex in which the workplace conduct fundamentally alters the employee’s working conditions. Harassment under this definition must be unwelcome and offensive to the employee as well as to a reasonable person. It must be severe or pervasive to be actionable as a hostile work environment. Courts have defined severe harassment to be some form of unwelcome sexual touching. If the harassment involves touching a hostile work environment can result from a single incident.
However, for any less offensive conduct it must be pervasive, meaning it is an ongoing stream of offensive conduct based on the employee’s sex or gender. This can include comments, leering, sexual content posted in the workplace, pictures, etc.
Tangible employment action in harassment discrimination claims in Texas
A hostile work environment may result in what is called a “tangible employment action” in which a supervisor is engaged in the harassment and the result is a negative change in the employee’s employment, such as a demotion or loss of assignments. This is much like quid pro quo harassment except the supervisor is not asking for sexual favors but instead demeaning the employee and harming the employee’s employment as part of the demeaning treatment of the employee based upon the employee’s sex or gender.
Bear in mind that a supervisor can engage in a tangible employment action against an employee on the basis of the employee’s sex or gender without any additional unwelcome sexual advances or openly demeaning comments, such as declining to promote an employee because she is a woman even though the supervisor has always been pleasant to the employee. This is still sex discrimination although not harassment-based sex discrimination.
Tangible employment action not always required
A hostile work environment does not have to include a tangible employment action. Often the goal of the harassment is to bully and demean the victim-employee. The end goal may be to convince the victim to transfer to another part of the company or quit although a supervisor takes no tangible employment act to make it happen. The employee does not have to quit to prove a hostile work environment although it is the most obvious way. The employee must show at a minimum a negative effect on his or her well-being or job.