Sexual harassment at work constitutes a hostile work environment and is prohibited by state and federal law. It’s important that employees and employers alike are familiar with this body of law; social interaction in the office is enjoyable and can facilitate productivity, but costly litigation can result if employers fail to recognize and take action against behavior outside legally-defined boundaries.
To succeed in a lawsuit based on sexual harassment in the workplace, the plaintiff must establish the following: (1) the plaintiff belongs to a protected group, (2) the plaintiff was subject to unwelcome sexual harassment, (3) the harassment complained of was based upon sex, (4) the harassment complained of affected a “term, condition, or privilege” of employment, and (5) the employer knew or should of known of the harassment and failed to take remedial action. Ewald v. Wornick Family Foods Corp., 878 S.W.2d 653, 659 (Tex. App.—Corpus Christi 1994, writ denied) (citing Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982)).
This test reflects two competing concerns faced by the courts. First, women’s right to equal opportunity in the workplace is rendered meaningless if they are subjected to discriminatory, hostile, or abusive working environments, depriving them of meaningful opportunity to compete and participate in the market economy.
In contrast, overly-protecting women from hostile work environments—by, for example, allowing lawsuits based on merely rude conduct—can lead to unintended consequences. For example, an employer may decide hiring women isn’t worth the risk of a lawsuit and implement policies to employ only males. Or, women quick to bring suit may come to be resented, further alienating them from a professional status based on respect and qualifications.
The Fifth Circuit has stated that a claim of a sexually hostile work environment will have merit only if the conduct complained of constitutes extreme insensitivity against women such that the conditions of employment are altered and the equal opportunity for women in the workplace is destroyed. DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995). Recognizing the severity of such a claim, the court explained that a lower standard based on, for example, conduct that is offensive on occasion, but that does not impede a woman’s work performance, would do damage to the law’s stated goal of promoting equality. Id.
The Supreme Court of the United States has adopted a standard it characterizes as a “middle path” between allowing suit for merely offensive conduct and prohibiting suit unless the conduct results in a tangible psychological injury. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). This standard affords a cause of action under Title VII when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to create a discriminatory hostile or abusive working environment. Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986).
<Application of this test is both subjective and objective. Understandably, the subjective standard requires that an alleged victim personally have found her work environment abusive to the extent that is alters the condition of her employment. Harris, 510 U.S. at 21. The objective standard requires that a reasonable person would find the work environment hostile or abusive. Id at 22. As explained by Justice Scalia in Oncale, Title VII does not provide a remedy for “[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1003, 140 L.Ed.2d 201, 208 (1998) (citing Harris 510 U.S. at 21, 114 S.Ct. at 370). Justice Scalia emphasized the importance of this requirement, as it ensures “courts and juries do not mistake ordinary socializing in the workplace-such as … intersexual flirtation-for discriminatory ‘conditions of employment.’” Oncale, 523 U.S. at 81.
Under this “reasonable person” standard, whether a work environment is “hostile” or “abusive” requires evaluating the totality of the circumstances, including “the social context in which particular behavior occurs and is experienced by the target…. The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing … and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.” Id. at 81-81.
Understood properly, these lawsuits need not be feared by the employer who is vigilante. One simple step to prevent the emergence of a hostile work environment is to provide a forum for employees to express concerns and document reports confidentially. Employees should be encouraged to document and report unwanted sexual advances, because mere rude behavior as an isolated event can become abusive in the aggregate, over time. Parties on both sides of this issue have valid complaints regarding current application of hostile work environment sexual harassment lawsuits, but the courts have done an admirable job establishing a test that recognizes the realities of society as well as the sensitivities of individuals.