Sexual harassment in the workplace is generally treated as a civil injustice in the United States. This means that the victim can sue the perpetrator (or more specifically the employer) in a civil court for financial compensation. (For information on liability, see our Liability article.) Sexual harassment, as such, is not a crime under US or federal law. However, some acts of sexual harassment are also crimes. Several other countries, including France and China, have enacted specific criminal laws to deal with sexual harassment.
Both men and women can be victims of sexual harassment. Sexual harassment at work is defined as:
Unwanted conduct of a sexual nature or directed against the sex of the victim which creates a hostile or offensive work environment and / or includes unfavorable work activities against the victim unwanted behavior.
Consent is not necessarily a defense against sexual harassment, unlike sexual assault. Given the power dynamics that often occur between the victim and the abuser, the victim may not resist or even accept sexual behavior for fear of losing their job or other repercussions if they object. Given this reality, sexual harassment can occur even if the victim agrees but the victim has to find unwanted behavior. Therefore, victims who bite their teeth together and do not protest against the leader’s persistent sexual opinion may experience sexual harassment according to the law. In contrast, an employee who engages fully and awkwardly in sexual banter with their superior may not be able to demonstrate that the behavior was inappropriate, as required by the sexual harassment law.
The behavior needs not to be overtly sexual or motivated by the harassing sexual desire. If the behavior is of a sexual nature or is directed at the victim because of his or her gender, it may constitute sexual harassment.
Disruptive behavior that constitutes sexual harassment must be above a certain level. It must be serious (e.g. physical assault) or widespread (e.g. constant comments, appointment requests, offensive imagery, etc.). A minor incident (a dirty joke in the dining room) is unlikely to be considered sexual harassment under the law. However, a workplace where offensive visuals (photos, images or images on monitors and computer screens) are permitted may be a hostile work environment under sexual harassment laws. Therefore, sexual harassment includes behaviors ranging from pictures from the “cheesecake” calendar in the office to sexual assaults by a colleague.
Sometimes the harasser (or others in the workplace) takes negative action against the victim. These “concrete” actions can range from poor performance assessment to dismissal, and often (but not always) occur when the victim resists or speaks out against harassment. A classic example is a victim who was released after she denied sexual harassment to her leader.
Although sexual harassment itself is not a crime, some sexual harassment conduct is considered criminal. In fact, sexual harassment includes many acts, some (but not all) of which violate criminal laws. For example, in most cases, posting a photo of an adult on a person’s computer that others find offensive is not a felony and could lead to sexual harassment; but if the same abuser physically assaults a colleague, it is not only sexual harassment, it is also a crime.
In the most serious cases of sexual harassment – sexual assault – the harasser is also a rapist, and the assault can result in a criminal charge of rape against the assailant and a lawsuit against the assailant’s employer.
Intentional and abusive physical contact or the threat of such physical contact may be a form of sexual harassment and may also be subject to state criminal assault and/or assault laws.
Sexual harassment may mean that the stalker restricts the victim’s freedom of movement (by physical force or threats). The detention of another person may constitute a violation of the criminal law prohibiting unlawful imprisonment or unlawful detention.
Some criminal laws prohibit intimidation. Some forms of sexual harassment may be included in laws against bullying. An example is when the harasser posts sexually offensive comments about the victim on their social media pages, knowing that a co-worker is viewing the page. And it can also violate intimidation laws when an attacker takes advantage of a victim’s sexual favors by threatening to take negative actions in the workplace. The boss who records the subordinate after the subordinate refuses to meet with him, the subordinate exposes her to both sexual harassment and bullying.
When a stalker watches the victim’s home, trolls the victim on social media, waits for the victim in a business park, or commits another persecution, the stalker may also be charged with the crime of persecution
Sexual harassment in the workplace often includes offensive images. If the image contains child pornography, the harasser (and even the employer) may be guilty of violating the Penal Code for child pornography.