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What is the Definition of Sexual Harassment?

Misconceptions about sexual harassment hostile work environment claims are common. Many believe one off-color joke or sexual remark in the workplace can constitute sexual harassment, while others (including some judges) believe the workplace must be permeated with harassment of a sexual nature to constitute sexual harassment. The truth lies more vaguely in between Sexual harassment is conduct, jokes or remarks of a sexual nature that are so severe or pervasive they alter the terms, conditions or privileges of employment and create a hostile or abusive work environment. Clear now?

1.  Conduct/remarks of a sexual nature. The conduct or remarks must be of a sexual nature. Profanity alone will not usually constitute sexual harassment, unless it is profanity of a sexual nature. Sexual remarks may include, but are not limited to,  remarks about the victim's body, unwelcome revelations by the harasser about his sex life, inquiries into the victim's sex life, and remarks about desired sexual activity with the victim. Conduct of a sexual nature can be anything from persistent unwelcome requests for dates and sexual advances to unwelcome touching, sexual assault and rape. A favorite of sexual harassers is the repeated "accidental" brushing up against a female worker's breasts or bottom.

2.  Severe or pervasive. One act of sexual harassment can be sufficient to sustain a claim if the act is severe enough. Some examples are the exposing of one's genitals, grabbing the victim's breasts or bottom or other acts of sexual assault. However, most sexual harassment cases are proven by showing the sexual harassment was pervasive. This often comes down to just counting how many remarks, jokes (our touching) occurred and how often. Every day for a few months? Once a week for a year? As you might guess, this is where things get squishy. What one judge sees as pervasive, another might see as sporadic.

3.  Altering the terms and conditions of employment.  This is why sexual harassment is illegal. Neither the federal or Texas statue prohibiting gender discrimination mention sexual harassment. Sexual harassment is illegal because it's a form of gender discrimination which, when severe or pervasive, adversely alters the conditions of employment for women (and sometime men) because of their sex. When sexual harassment is so severe or pervasive the victim finds herself looking over her shoulder for the victim, dreading to go to work for fear of another incident, finding it difficult to concentrate on her work or perform her job duties the conditions of her employment have been altered. As a practical matter, if sexual harassment is severe or pervasive enough, the terms and conditions of employment will be altered.

The bottom line is that sexual harassment does not involve bright lines. That's why it's important to find an attorney who specializes in employment law and knows where the lines will be drawn in the courts in his or her jurisdiction, as well as the cases to cite to prove the sexual harassment alleged is severe or pervasive enough to constitute sexual harassment. GSF 
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