Sexual Conduct at Work

Separating Consensual Flirtation from Sexual Harassment can be a Difficult Task

By Jack Merrill

Confused employers and employees are scratching their heads. They know it’s okay for consenting adults to flirt at work. They know it’s not okay for one employee to grope another, call her sexually derogatory names, or make repeated, unwelcome sexual advances. What employers and employees don’t know is how to deal with situations that fall somewhere in between — like the one where the “harasser” claims sexual talk or touching was consensual and the “victim” says it wasn’t.

When a complaint like that is made, employers face a daunting task. Their often untrained managers must apply fluid legal principles to conflicting factual stories. They must balance rights of victims against those of harassers. And they must avoid walking into a lawsuit, since either the victim or the harasser could sue for damages allegedly caused by the employer’s response to a complaint.

Making it through that process requires a fundamental understanding of two types of sexual harassment. The first is quid pro quo harassment, which involves demands for sex as a condition of a fair work environment. The second is hostile environment harassment, a sexually charged atmosphere that unreasonably interferes with a victim’s ability to perform his/her job.

Quid pro quo harassment seems simple enough. When a supervisor requests sex from an employee and, upon rejection of the advance, fires the employee, that’s quid pro quo harassment. The victim’s punishment can, of course, take subtler forms, such as poor job reviews, reduced raises, or undesirable work assignments. When this happens, analyzing the link between the sexual advance and the adverse job action can make quid pro quo cases rather complex. Among the more well-known of these cases involved President Bill Clinton and Paula Jones.

Hostile environment claims can be even harder to assess. With this type of harassment, sexual conduct must be offensive and pervasive enough to block full participation in the workplace. A hostile environment might exist where a supervisor repeatedly peers down an employee’s clothing, describes him/her in sexual terms, and/or touches the employee sexually.

Early preparation can help avoid sexual harassment complaints. Employers should review applicable laws, implement strong sexual harassment policies, and train workers on the basics of harassment law. As issues arise, counsel should be consulted before the employer takes final action. This will ensure compliance with legal requirements in all instances.