These are the factors that a government investigating agency or a court will look at to determine whether you have been sexually harassed. All four factors are usually present in every case--and it is important to keep in mind that they usually relate to one another.

1. Sexual advances, propositions or attempts to get sexual favors from an employee. These are the situations that most people probably think of first when they hear about sexual harassment on the job. (See Section A.1.)
2. Outright hostility toward women employees or a particular woman employee. This most often occurs in jobs that have not been traditionally open to women. These types of situations range from pranks, threats and intimidation to highly dangerous attacks. (See Section A.2.)
3. Lewd, sexual, or pornographic pictures, language and jokes permeating the workplace, creating an environmentor a "sexually poisoned workplace"that is offensive to many women employees. The sexual commentary and lewd humor in such cases may or may not be directed at the particular employee, but she may nevertheless find the sexually charged atmosphere to be intimidating and offensiveand that it puts her at a distinct disadvantage with respect to her male co-workers. (See Section A.3.)

There is an important new trend. The laws against sexual harassment are not limited to situations where men are harassing women. The latest statement from the U.S. Equal Employment Opportunities Commission (EEOC) makes this clear: "The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex."

This is an important-and healthy-development in the EEOC's approach to the problem. Sexual harassment of any nature should be illegal, and this policy could presage a full-fledged extension of protection against harassment to gays and lesbians who are harassed because of their sexual preference. (See Chapter 3, Section A.)

As salutary as this trend is, it is not inevitable. As noted in the previous chapter, the law against sexual harassment was originally an outgrowth of the law against gender discrimination in employment. Companies were prohibited from engaging in or allowing sexual harassment because it was considered an indirect form of sexual discrimination that deprived women of employment opportunities. But this new trend focuses on the acts of harassment themselves, independent of any underlying discriminatory motive.

Quid pro quo describes a situation in which an employee is confronted with sexual demands to keep her job or obtain a promotion. As the Latin term quid pro quo suggests, you have to do "this" to get "that." In more familiar vernacular, this is called a sex-for-jobs situation.

Hostile environment is frequently used to describe other types of cases in which the threator the trade-offis not as blunt. This typically involves sexually offensive conduct that permeates the workplace, making it difficult or unpleasant for an employee to do her job.

In reality, the line between the two types of harassment is blurry indeed. And courts often confuse the type of harassment with the type of injury resulting from it. For example, you will sometimes find sex-for-jobs cases described as hostile environment casespresumably because the woman employee was not fired of forced out of her job. And some serious sexual harassment cases are referred to as quid-pro-quo even though they involve no sex-for-jobs solicitation.

a. By supervisors or others in authority

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Here the focus is on who is making the sexual advance. Sexual advances from a supervisor or other person in authority will be scrutinized far more closely than those of other co-workers because of the strong possibility of intimidation and abuse of power. Supervisors are in unique positions of power in the workplace. It is usually presumed that the employer has knowledge of any sexual harassment committed by supervisors, and so the employer is almost automatically responsible for their actions.

Sexual advances by supervisors frequently involve the classic sex-for-jobs situation. The EEOC regulations state that sexual advances under these circumstances are unlawful if they are "explicitly or implicitly a term or condition of an individual's employment." In other words, if a woman must put up with these demands as part of her job, they may qualify as harassment.

Example: A sales manager invites a saleswoman on his staff to dinner. While eating dessert, he says softly: "Let's go up to my apartment after dinner, have a drink and get comfortable. If you want, we can discuss the performance reports and the salary recommendations that I have to make next week."

Although the sales manager makes no explicit reference to sex, it is strongly implied. By mentioning "getting comfortable" and "salary recommendation" in the same conversation, he creates a strong link between the two. This is a sex-for-jobs or quid pro quo situation.

In a supervisor-subordinate relationship, very little conduct of a sexual nature is needed to support a finding of harassment. Even a relatively polite request for a date by an employer or supervisor can be the basis of a sexual harassment charge if it appears to be connected to future work assignments, promotions or raises.

An unwanted sexual advance can qualify as sexual harassment even if the person in authority makes a favorable employment decision on behalf of the employee. If an employee submits to an unwelcome sexual advance because of a promise from a supervisor, the supervisor is guilty of sexual harassment-whether he or she delivers on the promise or not. It's the act or threat of using sexual conduct as the basis for making employment-related decisions that gives rise to the sexual harassment charge.

The same rules apply to anyone with real or apparent power over the employee who threatens to use such power as the basis for making an employment decisioneven if the person in authority is not in the employee's immediate chain of command.

Example: A secretary has a raise application pending. A senior staff member of the personnel department invites her several times to go out for dinner and dancing, but she refuses him. Finally he tells her: "I've got a lot of recommendations on my desk for raises, and it usually takes me quite a while to get around to processing someone's raise if she isn't a little more friendly." His conduct qualifies as sexual harassment.

Unwelcome sexual advances or demands from a co-worker can also be the kind of conduct giving rise to a sexual harassment charge. However, since these cases do not involve a supervisor or someone in authority, the threat to the employee is not as direct. These cases require a greater look at all the surrounding circumstances.

There is another important practical difference between a situation involving a co-worker and one involving a supervisor or someone in authority. As mentioned, with a supervisor or someone in authority, the company is presumed to know what's going on and therefore to be legally responsible for the situation. However, this presumption of knowledge does not apply to co-workers.

Sometimes an employer's reaction makes the sexual harassment situation worse and may result in the company being liable when it might not otherwise have been.

Example: An office worker in California received an anonymous, unwanted sexual solicitation from a co-worker on her office computer screen and reported it to her woman supervisor. The company responded to the complaints from the two women by demoting both of them, cutting back on their privileges and eventually forcing them to leave. Whether the company would have been held responsible for the original solicitation by the co-worker is unclear, but the act of retaliating against the two women employees made the company clearly liable for what later happened. (Monge v. Superior Court, 176 Cal. App. 3d 503 (1986).)

If the sexual solicitation comes from a co-worker and management is not involved, directly or indirectly, the focus is on the nature of the sexual advance. The emphasis is less on the "who" and more on the "how." Many facts are important in determining whether a co-worker has crossed the line from friendly bantering into sexual harassment: the frequency of the solicitation, the nature of the proposition, the language used, the physical gestures and proximity and the behavior of the co-worker. There is no hard and fast rule as to how much is too much.

Example: Arthur approaches Clara, a co-worker, at her desk in the office. In polite, non-threatening language he asks, "Would you like to try that new Chinese restaurant Saturday night?"

That alone would not be sexual harassment. It could either be argued that such a request is not conduct of a sexual nature or that a reasonable woman would not find it offensive. Either way, the result is the same: There is no sexual harassment.

But if a polite request for a date is made in sexually explicit terms or in a highly suggestive tone, it could give rise to a sexual harassment claim unless the female employee had previously indicated that such an overture was welcome.

Example: Arthur asks Clara for a dinner date, but in this instance he leans over her desk, winks at her and makes suggestive movements with his tongue.

Not only is his conduct explicitly sexual, but a reasonable woman would also be more likely to find it offensive. With these two factors strongly present, this conduct is likely to be considered sexual harassment.

The strength of the woman employee's initial response is often the key to showing that the sexual advance is unwelcome. If she firmly rejects a co-worker's initial request for a date and makes it clear that no further solicitation is welcome, any subsequent advances by him, whether in polite language or not, might constitute sexual harassment. "No" should definitely be taken to mean "no."

Example: Arthur asks Clara for a dinner date in polite language. She says no and she makes it clear that she is not open to dating him. He persists in coming by her desk every workday for the next month and asks her if she's changed her mind and will go out with him, and each time she firmly tells him no.

Arthur's request has crossed over the line from polite to harassing.

The legal status of the harasser within the company is not as important as the nature of the harassment itself. In a recent pronouncement on the subject, the EEOC has stated: "The harasser can be the victim's employer, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee."

A very serious situation occurs when the employer tries to force an employee to have sex with a client or someone else it wants to please.

Example: A Penthouse model successfully sued the magazine and Robert Guccione, the publisher, for $4,000,000 in damages under the New York Human Rights Law based on Guccione's coercive efforts to make her have sex with the company's financial advisor and others. The court viewed that situation as the equivalent of one in which the employer attempted to get sexual favors for himself. (Thoreson v. Penthouse Int'l, Inc., 563 N.Y.S.2d 968 (N.Y. Sup. Ct. 1990).)

But what if a supervisor has a consensual affair with one of his employees and gives her promotions and raises in preference to other employees? This type of favoritism, combined with abusive behavior toward other employees, can be a form of sexual harassment. While the supervisor is looking for someone willing to say "yes," he is frequently harassing the women who say "no."

Example: A male supervisor made the rounds of the office, propositioning several of the female employees. He then boasted that he was giving one woman a promotion because "she knew how to make him feel good." Although he had never specifically promised anyone else a promotion in exchange for sex, the court nevertheless held that his preferential treatment for his new girlfriend was part of an overall discriminatory treatment of women employees. (Toscano v. Nimmo, 570 F.Supp. 1197 (D. Del. 1983).)

Sometimes it is not the preferential treatment that amounts to sexual harassment so much as the retaliation against those who complained about it.

Example: In a crackdown on harassment in a government workplace, the court found that the U.S. Securities and Exchange Commission had created a hostile environment for women who complained about male supervisors giving preferential treatment to women with whom they were having affairs. (Broderick v. Ruder, 685 F.Supp. 1269 (D.D.C. 1988).)

If you feel you have been passed over in favor of your employer's paramour, carefully examine your working environment. If the employer's favoritism arises out of sexual conduct in the workplace, creates an atmosphere of intimidation or sets a different standard for female employees, it may also qualify as sexual harassment. Here, the strongest proof may be evidence that other women workers feel the same way you do.

2. Hostility related to gender
Hostile acts related to an employee's gender are another type of prohibited conduct of a sexual nature, even though they may not involve sexual overtures at all. Many cases of sexual harassment are based on outright hostility toward a particular woman employee or toward women employees in general. Sometimes the hostility comes from the reaction of a rejected lover. Other times a supervisor may be hostile toward a particular woman employee right from the outset and indulge his hostility in ways that he wouldn't think of doing if she were a man. In most of these situations, however, the hostility stems from men's opposition to women in previously all-male jobs and it manifests itself against any woman worker who happens to come upon the scene.

Some employers have argued that sexual harassment is not involved if a co-worker treats a woman employee with hostility. Sexual harassment, they argue, requires some evidence of sexual overtures to the female employee who registered the complaint. Fortunately, the courts have firmly rejected this argument, finding instead that sexual harassment can exist without sexual misconduct.

Example: A Washington, DC court found that a supervisor who blocked the doorway and forcefully twisted a woman employee's arm had sexually harassed her. She conceded that he wasn't after sexual favors, but the court ruled in her favor anyway, reasoning that her supervisor wouldn't have treated a man in that manner. (McKinney v. Dole, 765 F.2d 1129 (D.C. Cir. 1985).)

Example: A supervisor at a bakery plant stated that he didn't think a woman should be foreman and then boasted that he would make it "rough enough for her to leave." He then went on a campaign of yelling at her, ridiculing her and giving her impossible tasks to do. Although he didn't demand sexual favors, the court ruled in the woman's favor anyway, holding that "threatening, bellicose, demeaning, hostile or offensive conduct by a supervisor in the workplace because of the sex of the victim" was enough to state a claim for sexual harassment. (Bell v. Crackin Good Bakers, Inc., 777 F.2d 1497 (11th Cir. 1985).)

It is sometimes easier to visualize cases involving overt hostility as sexual discrimination cases rather than sexual harassment. If a supervisor subjects his female employees to ridicule and abuse because he would prefer to have men working for him, he is treating them differently than he treats male employees and, therefore, discriminating against them. Fortunately, the conceptual difference between a sexual discrimination case and a sexual harassment case is not important, because both are subject to the same legal prohibitions. In fact, the laws against sexual harassment are largely derived from the laws against sexual discrimination.

Most sexual harassment laws contain no specific provision prohibiting hostile acts against lesbians and gaysalthough there are state and local ordinances in some instances to specifically prohibit such harassment.

The EEOC now takes the position that the harassed person "does not have to be of the opposite sex" from the harasser. This is coupled with that agency's rule that the harassed worker as well as the harasser may be either a man or a woman. Although these EEOC guidelines do not yet have the force of law, it appears that the agency is pointing the way toward extending the protection of federal sexual harassment laws to gays and lesbians. It is hard to imagine an act of harassment against a lesbian or gay employee that does not create "an intimidating, hostile or offensive working environment" in violation of federal law. And many courts called upon to decide the issue have held that harassment is harassment, regardless of gender or sexual orientation.

A good argument can be made, moreover, that hostility against lesbians is illegal even under the general doctrine prohibiting sexual harassment against women. Hostile acts directed at a lesbian are likely to contain elements of animosity toward the woman's gender as well as her sexual orientation. Hardcore woman-haters consider "lesbian" to be a derogatory epithetand they use it against any woman they don't like. Sometimes this type of blind hatred can be turned against the harasser. If, for example, a lesbian is subjected to repeated abuse, hostility and derogatory names from a co-worker, she should take a close look at how he treats straight women employees. It's likely that he calls all independent women lesbians and treats them all badly. If that's true, she may be able to show that his animosity is really directed at her assertiveness and independence and that it would have existed regardless of her sexual orientation.

A lesbian faced with hostile conduct should stress those elements of her claim that she has in common with other harassed women to fit within the protection of the sexual harassment laws. She should probably try to show that the hostility toward her is a subspecies of a more general animosity toward all women employees.

Here, the offensiveness is not always directed at a specific individual; it usually derives from the cumulative effect of a lot of offensive and demeaning acts that may seem relatively innocuous when viewed in isolation.

Often the main injurious effect of this type of sexual conduct is to create a working atmosphere that is hostile to working women as a group. The sexually poisoned workplace creates a situation where discrimination against women commonly flourishes.

Example: A court recently concluded that a proliferation of pornographic magazines, vulgar employee comments about the magazines, sexually oriented pictures in a company sponsored film and slide presentation and offensive sexual commentary during the film all contributed to a hostile working environment, because it creates "an atmosphere in which women are viewed as men's sexual playthings rather than as their equal co-workers." (Barbetta v. Chemlawn Serv. Corp., 669 F.Supp. 569 (W.D.N.Y. 1987).)

Example: A woman employee in a Florida shipyard complained that the walls displayed pictures of a woman's pubic area with a meat spatula, a nude woman wearing high heels and holding a whip, and a dartboard with a drawing of a woman's breast and nipple as the bull's eye. There were no pornographic pictures of men pinned up. The court noted that: "Pornography on an employer's wall or desk communicates a message about the way [the employer] views women, a view strikingly at odds with the way women wish to be viewed in the workplace." (Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D.Fla. 1991).)

Although more courts are recognizing that lewd and vulgar behavior in the workplace is a form of sexual conduct that can amount to harassment, these are often difficult cases for an employee to win. The harassed employee must be prepared to show that the conduct is severe or pervasive throughout the workplace: isolated instances, unless they are particularly offensive, will not be enough. (See Section C.)

To help clear this hurdle, look carefully at the entire working environment to see if an offensive atmosphere can be linked to other, more specific harm. For example, if an anti-woman joke makes the rounds of the office, it may seem to have no immediate ill effect. But if the same joke is repeated by someone who is about to recommend employees for promotion, it is an important indication of a possible bias against women employees. It is crucial in these cases to look for that connection.

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Reasonableness typically becomes important only when the conduct may be ambiguous or subject to misinterpretation. Courts want to make sure that the employee bringing the case is not complaining about conduct that other people wouldn't find offensive. As the EEOC Compliance Manual, the handbook for personnel investigating harassment, states, somewhat pompously, the law should not "serve as a vehicle for vindicating the petty slights suffered by the hypersensitive."

The Coming of Age of the Reasonable Woman

In assessing whether conduct is unreasonable, courts have traditionally used an objective testasking whether a reasonable person would find it offensive.

But in sexual harassment cases, some courts have opined that the reasonable person test seems particularly inadequate. These courts make note of the realization that there is often a big difference in how men and women view the same facts. As one court put it: "A male supervisor might believe, for example, that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female subordinate, however, may find such comments offensive." (Lipsett v. University of P.R., 864 F.2d 881 (1st Cir. 1988).) (See Chapter 3, Section B.1 for a further discussion of gender differences in perception.)

The EEOC Compliance Manual suggests that the conduct might be judged from the viewpoint of the female employee: "The reasonable person standard should consider the victim's perspective and not stereotyped notions of acceptable behavior."

A few cases have been more explicit, including one in which the court noted:

Women who are victims of mild forms of sexual harassment may understandably worry whether a harasser's conduct is merely a prelude to violent sexual assault. Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive. (Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).)

But such courtly observations have not been universally hailed as advancements. Some people have criticized the proffered reasonable woman standard as being coddling and demeaning to women workers. When the U.S. Supreme Court decided its most recent sexual harassment case, it remained mum on the reasonable woman standard (Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).)

The current standard is difficult to target. It may evolve that the unreasonableness of the sexual conduct will be judged by some androgynous "reasonable person" standard. Or it may be judged by the attitude of a reasonable person of the gender of the person being harassed. There is some evidence that the attitude of most males toward sexual harassment in the workplace is starting to change. The truly optimistic might argue that by the time the Supreme Court rules on the issue, the attitude of both men and women as to what is unreasonable behavior might not be that far apart.

How a woman employee responds to a situation may, within certain limits, determine what conduct is reasonable or unreasonable within her own workplace.

To a certain extent, a woman employee makes her own rules as to what is and is not acceptable workplace behavior. Once a woman reasonably defines the boundaries of what is personally offensive to her, it will often be considered sexual harassment for a co-worker to cross such boundaries.

Example: A married woman works as a stockbroker. She shares a desk with another broker. He never asks her out, but he frequently prefaces remarks to her with the phrase, "If you weren't married" and mentions how he can't find a woman he likes as much as her.

It's not clear whether a reasonable woman would find the comments offensive. However, if this particular employee tells her co-worker that she is bothered by his remarks and asks him to stop, she in effect creates a standard of conduct that applies to their relationship.

Of course, a woman employee can't impose unrealistic or unworkable standards on her co-workers. But there are grey areas in determining what kind of conduct is reasonable and what is not. By speaking up and explaining what conduct she finds offensive, a woman has some control over the standards that will apply in her own work environment. (See Chapter 3, Section E for a discussion on confronting your harasser.)

On the women who comprise management at Playboy: I think the true situation becomes more clear if you imagine Jews working for a magazine in which Jews are nude and Christians are clothed. --Gloria Steinem

Proving your case

If you have been harassed by unreasonable conduct, the most important evidence you can present is that you let the harasser know that you found his conduct unreasonable and that he persisted to violate the standard you set. Two kinds of documentation will be most persuasive in such a case. One is evidence that you told the harasser he was behaving unreasonably a dated entry in your journal, a copy of any letter you sent him asking him to desist. Also important would be dated documentation that he kept up the harassing behavior even after you notified him it was unacceptable again, dated journal entries or your statements to co-workers or others.

Although important, this factor is often assumed or left unstated in certain types of cases. For example, if a co-worker physically molests or endangers a woman employee, the situation is obviously severe.

However, the severe or pervasive factor is important in less obvious situations, such as those involving sexual advances by a co-worker other than a supervisor. Here, it is usually necessary to weigh all of the circumstances to determine whether the particular conduct was severe in and of itself or so pervasive as to create a hostile or intimidating environment.

1. EEOC guidelines

The EEOC Compliance Manual sets out guidelines for investigators to follow in determining whether any sexual conduct is severe or pervasive. According to the EEOC, investigators should consider:

The Compliance Manual explains how conduct should be evaluated using these factors. According to the EEOC, unless there is a single, "quite severe" incident, the investigator should go through a weighing process to determine whether the conduct gives rise to a sexual harassment claim. No weighing process is necessary in a sex-for-jobs situation, however, because the EEOC says that "a single sexual advance may constitute harassment if it is linked to the granting or denial of employment benefits." In other words, a sex-for-jobs situation is always considered severe without anything further.

Cases involving intrusive types of touching or fondling are also usually considered severe even if the offensive behavior only occurs once. This is true whether or not it involves a supervisor.

In general, the EEOC considers physical actions by a co-worker to be much more serious than words, because "even a single unwelcome physical advance can seriously poison the victim's working environment."

And the EEOC Compliance Manual takes the position that "the more severe the harassment, the less need to show a repetitive series of incidents. This is particularly true when the harassment is physical."

2. The totality of the circumstances

In the case of persistent sexual advances from co-workers or a sexually poisoned workplace, it is usually important that the harassed employee build his or her case fact by fact, with an eye toward showing the totality of the working environment.

No one fact may be decisive, but the sum total of them all might be. Here is how one court looked at it: "A play cannot be understood on the basis of some of its scenes but only on its entire performance; similarly, a discrimination analysis must concentrate not on individual incidents but on the overall scenario." (Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D.Fla. 1991).)

The case from which that quote was taken is a good example of how the cumulative effect of offensive behavior worsens the work environment. At the trial of the case, Lois Robinson testified that there were groups of pornographic pictures displayed at nearly 40 sites throughout the Jacksonville Shipyard where she worked and that she found them to be offensive.

But she also took the case one step further, directly connecting the pornographic photos to her working conditions. She testified that several male co-workers made suggestive remarks to her when they neared the pornographic photos. One told her: "I'd like to get in bed with that." Another said: "Hey pussycat, come here and give me whiff."

The connection between the pornographic workplace and Robinson's individual harassment went still further. When she objected to the pictures, her co-workers increased their sexual taunting. When she objected to a sexist joke in which sodomous rape was referred to by the term "boola-boola," her co-workers started calling her by that name. It was the cumulative effect of all this interrelated behavior that created a hostile and intimidating working environment.

Even behavior that a woman worker does not witness can still have a cumulative, pervasive effect in creating an abusive working environment.

Example: A woman works in an office where pornographic pictures are passed around by the male employees and where they persist in telling obscene, sexist jokes. She tells them that she is offended by their conduct. The next time she walks into the room one of her co-workers says, "Look out here comes Snow White. Let's go in the other room so I can finish this story."

Here, the joke that the woman's co-workers tell out of earshot just "among the boys" is relevant to her claim that she is working in a sexually poisoned workplace. The co-workers' condescending attempt to protect her from one particular joke makes little difference, because her sensitivity to that joke is not the real point. The main issue is the cumulative impact of pornographic and obscene behavior in the workplace, and her co-workers' furtive manner doesn't change the situation.

Proving your case

Courts that have ruled against women employees in sexually poisoned workplace cases have often done so because there was insufficient proof that the offensive sexual conduct was severe or pervasive. An employee bringing such a case must usually show that such conduct permeates the workplace to overcome the inertia of a less-than-sympathetic judge.

In presenting a case, be prepared to list as many sexual or hostile incidents as possible, including dates, places and witnesses. Look for witnesses who can testify as to other similar incidents. Search hard for connections that link the overall atmosphere (the prevalence of pornographic pictures) to specific hostile incidents (sexual taunting when you object). Focus on whether supervisors participated in creating or tolerating the sexually poisoned atmosphere.

"Your boss might call you a slut once or 10 times, but a court might not consider it harassment because it doesn't affect your ability to perform your job."-- Laurel Bellows, President of the American Bar Association's Commission on Women in the Profession, 1997

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At first glance, it would seem that this factor would be easy to fulfill in any situation: If the conduct wasn't personally offensive and unwelcome, why would the employee bother to complain about it? The problem is timing. The woman must show that the conduct was unwelcome and offensive to her at the time it occurred. Sometimes that can be difficult.

In a sex-for-jobs situation, the supervisor or employer will frequently claim that the employee welcomed the sexual advances at the time and that the relationship was purely consensual. Likewise, in the case of the sexually poisoned workplace, an employer will often argue that the employee was a willing participant in the rough humor and sexual pranks and that she didn't really seem offended by it. The issue of unwelcome ness can be a problem in any kind of situation where there is no clear evidence of the subjective attitude of the employee when the events occurred.

1. Voluntary but unwelcome

In the past, employers have argued that if a woman voluntarily submits to her employer's sexual advances, she has consented to them. The legal rule, however, is more favorable to the employee: She is only deemed to have welcomed the sexual advance or conduct if it can be shown that it is something she wanted to do at the time.

The best example is taken from the first case involving sexual harassment that the U.S. Supreme Court decided. In that case, Mechelle Vinson testified as to what happened shortly after she was hired by the Meritor Savings Bank:

[Her supervisor] invited her out to dinner and, during the course of the meal, suggested that they go to a motel to have sexual relations. At first she refused, but out of what she described as fear of losing her job she eventually agreed. According to [Vinson], Taylor [her supervisor] thereafter made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, Taylor fondled her in front of other employees, followed her into the women's restroom when she went there alone, exposed himself to her and even forcibly raped her on several occasions.

Almost unbelievably, the lower court judges thought that this was not sexual harassment because they characterized the relationship between Vinson and her supervisor, Taylor, as "a voluntary one." The U.S. Supreme Court, however, held the behavior was clearly harassment. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986.).

Proving your case

A woman who gives in voluntarily to sexual demands out of fear of losing her job does not forfeit her right to raise a claim of sexual harassment. The test is whether the employee welcomed the sexual advance or conduct not whether she felt compelled under the circumstances to go along with it.

Your strongest evidence in such a case is any proof that you found the behavior repugnant and felt apprehensive about the stability of your job at the time.

2. The employee's appearance

The U.S. Supreme Court has stated that a court can consider evidence of the employee's "sexually provocative speech or dress" along with other facts in determining whether the employee really welcomed any sexual advances.

There is justified criticism of this rule. It's virtually impossible to know what the Supreme Court was talking about when it referred to provocative speech or dress: provocation, like beauty, is in the eye of the beholder. It is safe to assume, however, that a woman employee who dresses in a way that might stimulate a man's fantasies has to be particularly careful.

Proving your case

Courts' emphasis on a harassed woman's wardrobe places an unfair burden on women who choose to dress in certain ways. But, fair or not, women in that position should be particularly explicit in telling a co-worker that his sexual advances are unwelcome in offsetting his own misplaced mind set. (See Chapter 3, Section C.2 for a further discussion of work clothes.)

3. Coping strategies

Speaking out against harassment, while preferred, is not always possible. Frequently, an employee is fearful of what will happen if she does. A woman faced with harassing conduct in the workplace often adopts a coping strategy behavior that sometimes gives the appearance that she is a willing participant but in fact may only be her way of dealing with an unpleasant situation.

According to one expert on coping strategies:

[W]omen respond to sexually harassing behavior in a variety of reasonable ways. The coping strategy a woman selects depends on her personal style, the type of incident, and her expectation that the situation is susceptible to resolution.

Typical coping methods include:

Proving your case

If your coping strategy has been to go along with the language of the workplace, you can still pursue a claim for sexual harassment. But coping in this way, although understandable, can create a difficult proof problem: you act one way while the events are occurring and later make the claim that you felt quite the opposite.

Fortunately, even a woman who reasonably believes that she cannot tell her harasser to stop without jeopardizing her job or facing worse harassment usually has ways to establish that she did not welcome the sexual advances or conduct when they occurred.

Example: A young woman works in a stock brokerage, and a co-worker tries to sit close to her and put his arm around her at office social events or informal gatherings. One time another employee saw him trying to kiss her as the elevator door opened. She is afraid to tell him to stop because he has a bad temper and their supervisor is his best friend and tennis partner.

Here, the woman's coping strategy is to go along with the sexual conduct, but she must somehow establish facts that will show that the situation is really unwelcome to her. Probably the best way to do that is to tell as many people as she can trust, such as other co-workers, friends outside the business and counselors that the relationship is not what it appears to be and that she is only putting up with it out of fear. She needs to develop contemporaneous, corroborating evidence of her true attitude toward his sexual advances, even if that proof is outside of company channels.

4. Breaking off a relationship

In some situations, it is especially important for a harassed woman to take affirmative steps to show that sexual conduct is unwelcome. This may be particularly true if there has been a close relationship between the woman and her harasser.

An employee does not forfeit her right to protection from sexual harassment if she was romantically involved with a co-worker, but she has to make it clear to him that any further sexual advances are unwelcome. The prudent thing in this situation may be to tell everyone, including management and other employees, that the relationship is over, so as to dispel any appearance that she still welcomes his advances.

"Men need to understand why a compliment that would delight a lover may disturb the woman in the next cubicle. Women could use help in telling men when they're being offensive without going ballistic." --Joanne Jacobs, San Jose Mercury News, 1994

5. The employee's limited consent

Employers frequently argue that an employee has welcomed certain sexual advances or conduct because she willingly participated in some similar type of activity. An employer might try to generalize from the mild to the severe citing instances in which the woman told an off-color joke or participated in a relatively harmless sexual prank as evidence that she must have no objection to the sex-charged working environment as a whole. But often that working environment includes hard-core, misogynist pornography, dangerous pranks and demeaning sexual comments that go well beyond the type of conduct that she did not find offensive. In tolerating certain types of mild sexual conduct she does not forfeit her right to challenge other, more serious forms of sexual harassment.

Even if a woman is hired to do a highly sexualized job, she does not waive her right to object to other forms of sexual conduct that she finds offensive. A leading case on this point involved a woman hired as Pet of the Month by Penthouse magazine and whose job involved movie and personal appearances in highly sexualized settings. Despite the nature of her job, the magazine and its publisher were held liable for coercing her into having sex with business associates and others that the publisher wanted to please:

The offensiveness of defendants' conduct is not mitigated by the fact that plaintiff's job as a model and actress for Penthouse involved, in part, the commercial exploitation of her physical appearance. Sexual slavery was not a part of her job description. Protections against sexual harassment are arguably more necessary in a workplace permeated by conceptions of women as sex objects. When there is a significant potential for discriminatory abuse of power by an employer, the need for an effective deterrent to enforce public policy and protect employees is even greater. (Thoreson v. Penthouse Int'l, Ltd., 563 N.Y.S.2d 968 (N.Y. Sup. Ct. 1990).)

6. Other employees offended by the harassment

Every employee has a right to a working environment that is not intimidating, hostile or offensive. If one employee is being harassed and it is affecting the working environment, however, other employees may question whether they have the legal right to do something about it. The answer is probably yes. A number of courts have taken the position that if the harassment against women is affecting the working environment, the other employees including men who are offended by the conduct can take action against it.