One of the biggest burdens to victory in a sexual harassment case comes when the plaintiff is alleging a hostile work environment. A hostile work environment isn’t where your boss simply dislikes you. That’s just a matter of their poor taste in company.
A hostile work environment in a sexual harassment case involves more than a bully boss. Instead, there must be severe and pervasive conduct that a reasonable employee would find intimidating. In short, the hostility must rise to a level that it interferes with your work.
Obviously, such a vague definition is subject to misinterpretation and abuse. Courtesy of the FCC’s internal guidelines, here are a few examples to clarify things.
- Leering, i.e., staring in a sexually suggestive manner
- Making offensive remarks about looks, clothing, body parts
- Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body
- Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
- Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
Again, what offends one person might not offend another. That’s why the standard followed by the court is that of the reasonable, or average, employee.
The hypothetical employee isn’t going to find someone singing Savage Garden’s “Truly Madly Deeply” to be terribly offensive. After all, they only want to stand with you on a mountain, and perhaps, with consent, bathe with you in the sea.
On the other hand, unless you work in a strip club, most employees would find it offensive if their boss serenaded them with “Freak Me” by Silk, while table dancing and pelvic thrusting on their cubicle desk.
Sexual harassment really is a spectrum, and to prevail on a hostile workplace claim, you’ll have to show conduct closer to Silk than Savage Garden.