We see on the news that more and more women and men are speaking out against sexual harassment at work. Unfortunately, what is considered sexual harassment in the US is not always clear. This lack of clarity comes from the fact that sexual harassment and unlawful sexual conduct have different meanings under different laws and policies, in the workplace, in educational institutions, and in our criminal justice system.
Our legal system does not have a law that directly corresponds to the term “sexual harassment,” so it may appear that sexual harassment is not a crime. However, some actions may be considered sexual harassment in your workplace.
In some cases, sexual harassment cases can be punishable by criminal penalties. Sexual harassment cases, including illegal actions, may involve arrest and prosecution. Although many of these cases are not arraigned in court, it is necessary to understand how to control this behavior to ensure a legal defense.
What is sexual harassment?
Many different behaviors fall under the category of sexual harassment. Generally, harassment behavior includes any conduct that causes others to be frightened, harassed, or concerned about their safety and property. Any person may file sexual harassment complaint if this type of behavior involves sexual activity or lewd comments.
Sexual harassment happens when one person makes sexual advances, suggests sexual activity, or uses inappropriate language toward another person who disagrees with the behavior. It includes actions such as:
- Unwanted behavior of a sexual nature
- Creating a hostile environment
- Threats or retaliation to force sexual activity
Consider the following example-
Richard works for an internet marketing company. Richard’s boss calls him every two weeks for a performance review. At each of these meetings, Richard’s boss makes lewd suggestions about sexual activity and passes graphic comments about Richard’s appearance. Richard can file a sexual harassment complaint because sexual comments are unwelcome and create a hostile work environment.
In the above case, there is strong evidence of sexual harassment. In most cases, sexual harassment will not result in criminal charges. However, the justice system will be involved if this situation goes beyond the line.
Sexual harassment in the workplace
Both men and women become victims of sexual harassment. In the workplace, sexual harassment is:
Consent is not necessarily a defense for sexual harassment, as sexual assault can be. Because of the power dynamics between the victim and the harasser, the victim may not fight back or even consent to the sexual behavior for fear of losing their job or other consequences if they object.
Due to this fact, sexual harassment can occur even if the victim consents. However, the victim must find this behavior unwelcome. So a victim who grits her teeth and doesn’t object to a manager’s constant sexual comments may be experiencing sexual harassment under the law.
In contrast, an employee who participates fully and without discomfort in sexual banter with her supervisor will be unable to demonstrate that the conduct was unwanted, as required by the Sexual Harassment Act.
Act Sexual in nature
This behavior does not have to be explicitly sexual or motivated by the sexual desires of the harasser. If the conduct is sexual or commanded at the victim because of their gender, it may constitute sexual harassment.
Hostile or offensive environment
Unwelcome behavior must reach a certain level to amount to sexual harassment. It must be either severe (such as physical assault) or pervasive (such as a constant barrage of comments, date requests, offensive visuals, etc.). A minor incident like a dirty joke in the cafeteria would probably not be considered sexual harassment under the law. But a workplace where offensive visuals (photos, drawings, or images on monitors and computer screens) are allowed can be a hostile work environment under the Sexual Harassment Act. Thus, sexual harassment includes behavior ranging from “cheesy” photos in an office calendar to sexual assault by a co-worker.
Undesirable employment action
Sometimes the harasser will take adverse action against the victim. These “tangible” actions can range from poor performance review to termination and often (though not always) occur when the victim resists or protests the harassment. A classic example is a victim who gets dismissed after rejecting the sexual advances of her manager.
Can you go to jail for sexually harassing someone?
It’s neither a crime nor against the law to make an inappropriate joke or mention sex at work.
However, workplaces may have policies against this type of behavior, which may result in termination of employment. Companies will follow their protocols to investigate complaints of harassment and report issues. It is best not to make a mistake on the side of caution and avoid such behavior that includes harassing, discriminating, or physical harassment by your co-workers.
If the victim feels that the internal investigation is sufficient, they can go to civil court and file a hostile work environment civil claim. It includes suing the alleged sexual harasser or the company itself for failing to provide a safe workplace.
These are usually civil claims which are not part of the criminal justice system. That means these claims don’t risk criminal charges or jail time — but they can involve hefty financial penalties. It can also harm your professional prestige.
However, when the behavior turns physical, the law can get involved, leading to criminal charges. Thus, it is the main difference between sexual harassment and sexual assault.
Penalties for sexual harassment
In the US, sexual assault is a Class D felony. The sentencing judge has discretion in determining the sentence, but the law requires the judge to impose a sentence within a range. In addition, the penalty is “indeterminate,” which means the judge does not set an exact period. Instead, the judge chooses a range of years between the absolute minimum and maximum set by law.
A defendant could serve the entire sentence or just a minimal amount depending on his behavior in prison and other factors. US law sets the minimum sentence for sexual assault at one to two years and the maximum penalty at seven years, and judges can choose any range that falls within these limits.
If workplace employers are found guilty of failing to stop sexual harassment that they know, the court may impose the following penalties:
Payment of lost earnings to the victim –
The victim earns these benefits from the time of harassment until the settlement or trial.
Payment of future lost wages to the victim-
These are the earnings and benefits to the victim that the victim would have received had the sexual harassment never occurred.
These are paid to the victim by the employer for the emotional pain and anguish the victim has suffered.
These are payments over and above the economic and non-economic losses suffered by the victim, intended to punish the employer.
These are payments to the victim for court fees and legal costs incurred by the victim due to a sexual harassment case.
Reinstatement or Promotion-
It is an order to reinstate the victim or to promote the victim.
Defenses to Sexual Harassment Charge
In sexual harassment convictions, the most common defense is of actual innocence. The defendant can argue for an alibi, which means they were never present in the location at the time the alleged crime took place. The defendant must show credible evidence to mount an effective defense of an alibi.
Another common defense is the victim’s consent. The most crucial element of sexual assault is that the alleged behavior must occur without the victim’s consent. If the defendant can prove that the victim consented to the sexual activity by his/her own will, there is a solid defense for the charge of sexual assault.
Despite decades of attention, legal action, and advocacy, this data analysis, research, and experience shows that sexual harassment remains a grave and pervasive problem in virtually all industries and workplaces. We have found that no sector is immune to sexual harassment or its effects. Sexual harassment damages countless victims’ lives, health, financial independence, and opportunities, costing businesses not only legal fees but also lost productivity, morale, efficiency, and talent.
Sexual harassment is about the interplay of gender and power in every sector of the economy. While the data clearly shows that among all industries, lower-status women are the most frequent targets of sexual harassment by perpetrators, who are typically higher-status men, sexual harassment is not limited to this dynamic.
Is harassment legal in the US?
Harassment becomes unlawful if tolerating the offensive behavior becomes a condition of continued employment or if the conduct is extreme or pervasive enough to create a work environment that a rational individual would find rough, aggressive, or offensive.
Can my employer redress me for filing a sexual harassment lawsuit?
Nope. Federal law prohibits retribution against employees who report illegal employment practices or file a workplace discrimination complaint. You get protection from retaliation for appearing as a witness in a sexual harassment lawsuit against another employee.
Is sexual harassment ever a crime?
A harasser’s conduct may be a criminal offense depending on the state in which it occurred. If the sexual harassment consists of physical assault, criminal sexual conduct, stalking, threats, or other crime, the harasser can be punished.
How seriously does harassment have to be before someone can file a complaint?
Courts used to require harassment to be “cruel or pervasive” before it was illegal. On 11 October 2019, this is changed by an amendment to the Human Rights Act, making harassment illegal if it is anything other than “minor insults or trivial annoyances.”