When we hear the term “sexual harassment”, many of us tend to think about a situation where someone is exposed to unwanted, harassing conduct. We also tend to think of this conduct as sexually driven, whether it is through inappropriate touching or sexually explicit comments. This limited understanding of sexual harassment prevents us from recognizing the full scope of the motivating factors behind this conduct and the intended definition of sexual harassment as defined by the law.
We discussed in an earlier blog the two categories of sexual harassment: Quid Pro Quo harassment (“QPQ”) and Hostile Environment harassment (See blog post “Two Categories of Sexual Harassment). One of the main questions that arises when discussing the realm of sexual harassment is whether or not the sexual harassment needs to be driven by sexual desires in order to be classified as such. In order to get a better understanding of what sexual harassment is, it is important to first differentiate between the concepts of “sexual” and “gender”. Though the term “sexual harassment” immediately triggers the idea of an unwanted sexual advance, the term is actually meant to define any harassing conduct that takes place where the motivation or intent is based on the victim’s gender or sexual orientation.
Sexual harassment is also typically thought of as an action that occurs between a male and a female. However, it is also true that sexual harassment can occur between two people of the same gender as long as discrimination based on the employee’s gender can be established. For example, if a heterosexual male is subjected to taunts and/or gestures suggesting that he is a homosexual, this would fall under the category of sexual harassment because sex (gender) and the person’s perceived sexual orientation were used as a means of harassment in the workplace.
So what does this difference mean in terms of classifying sexual harassment cases? Essentially this broadens the spectrum of what constitutes sexual harassment. While harassment driven by sexual desires still falls under this umbrella, any harassing conduct that amounts to discrimination based on a person’s gender, their actual sexual orientation, or perceived sexual orientation now falls into the category of sexual harassment as well.
Understanding the term “sexual harassment” is crucial in defining the entire range of events that could occur that constitute sexual harassment in the workplace. If you believe that you have been sexually harassed, or you are unsure if your situation falls under the category of sexual harassment, you should consult a sexual harassment lawyer to learn your rights.