I’m an employee rights lawyer. And I’m being asked daily – because of the daily news reports of shocking sexual harassment by leaders in the entertainment, sports and media fields – to explain the legal meaning of “sexual harassment.” I’ve been flooded with calls from women asking, “Is what I’m telling you sexual harassment? Does my boss’ conduct amount to an illegal hostile environment?” Unfortunately, the answer is often yes. I’ve been suing employers for sexual harassment for years. The news reports are not news to me. It’s a terrible and common problem in many workplaces.
The easiest way to make the point is to show you the actual jury instruction given by federal judges to juries in sexual harassment cases. What appears below is the complete Pattern Jury Instruction 4.6 – Workplace Harassment. When a sexual harassment case goes to trial, the judge, after all the evidence has been presented, reads the following instruction to the jury. Based on this exact instruction, the jury will then complete a verdict form and answer “yes” or “no” to a simple question: Was the employee the victim of sexual harassment?
Is this familiar? Does it sound like your workplace?
4.6 Title VII – Civil Rights Act – Workplace Harassment by Supervisor
In this case, [Employee] claims that [Employer] violated Federal Civil Rights statutes that prohibit employers from discriminating against employees in the terms and conditions of employment because of their sex. These statutes prohibit the creation of a hostile work environment caused by harassment because of an employee’s sex.
Specifically, [Employee] claims that her supervisor harassed her because of her sex and that the harassment created a hostile work environment.
[Employer] denies [Employee]’s claims.
To succeed on her claim against [Employer], [Employee] must prove each of the following facts by a preponderance of the evidence:
- First: [Employee]’s supervisor harassed her because of her sex;
- Second: The harassment created a hostile work environment for [Employee]; and
- Third: [Employee] suffered damages because of the hostile work environment.
A “hostile work environment” created by harassment because of sex exists if:
- (a) [Employee] was subjected to offensive acts or statements about sex– even if they were not specifically directed at her;
- (b)[Employee] did not welcome the offensive acts or statements, which means that [Employee] did not directly or indirectly invite or solicit them by her own acts or statements;
- (c) the offensive acts or statements were so severe or pervasive that they materially altered the terms and conditions of [Employee]’s employment;
- (d) a reasonable person – not someone who is overly sensitive – would have found that the offensive acts or statements materially altered the terms and conditions of the person’s employment; and
- (e) [Employee] believed that the offensive acts or statements materially altered the terms and conditions of her employment.
To determine whether the conduct in this case was “so severe or pervasive” that it materially altered the terms and conditions of [Employee]’s employment, you should consider all the circumstances, including:
- (a) how often the discriminatory conduct occurred;
- (b) its severity;
- (c) whether it was physically or psychologically threatening or humiliating; and
- (d) whether it unreasonably interfered with [Employee]’s work performance.
A “material alteration” is a significant change in conditions. Conduct that amounts only to ordinary socializing in the workplace does not create a hostile work environment. A hostile work environment will not result from occasional horseplay, sexual flirtation, offhand comments, simple teasing, sporadic use of offensive language, or occasional jokes related to sex. But discriminatory intimidation, ridicule, insults, or other verbal or physical conduct may be so extreme that it materially alters the terms and conditions of employment.
If you find that [Employee]’s supervisor harassed her because of her sex and that the harassment created a hostile work environment, then you must decide whether she suffered damages as a result. If the damages would not have existed except for the hostile work environment, then you may find that [Employee] suffered those damages because of the hostile work environment.
Categories: Sexual Harassment