Wednesday, July 18, 2007

What Constitutes a Sexually Hostile Working Environment?

The worker has the right to a safe working environment. Hostile working environment opens up the employer to liability for not providing the workers with a hostile-free environment.

A sexually hostile environment is created when there is unwelcome conduct based on gender. Aside from this, two factors must also be present. They are:

1. It must be abusive to the person affected; and
2. It must be severe and pervasive as to create a work environment where a reasonable person would find it abusive.

In order to determine whether the sexual act or unwanted sexual conduct is pervasive or severe, the courts consider the following factors:

1. The frequency of the unwelcome or discriminatory act;
2. The severity or gravity of the conduct;
3. Whether the conduct was physically threatening or humiliating, or a mere offensive utterance;
4. Whether the conduct unreasonably interfered with work performance of the employee;
5. The effect on the employee’s psychological well-being as a result of the harassment; and
6. Whether the harasser was a supervisor in the organization or exercises moral ascendancy over the employee victim.

No hard and fast rule can determine whether sexual harassment creates a hostile working environment. A person asking a couple of times for a date does not constitute sexual harassment. However, touching a person in a sexually offensive manner or addressing any unwelcome comment, frequently, may constitute sexual harassment.

The only factor common to all sexual harassment cases is the fact that it is unwelcome and/or unwarranted by the victim.