Element One: The conduct is “Because of Sex.” Actionable sexual harassment requires that the complained of conduct must be because of the plaintiff’s gender, must be sever or pervasive, and must be unwelcome. Harassment that is neither sexual nor gender-based cannot constitute sexual harassment. Put differently, to establish a hostile environment claim, the complainant must show that “but for the fact of her sex, she would not have been the object of harassment.” Although, most cases assume that gender-based epithets are motivated by the plaintiff’s sex, some courts have recently indicated a willingness to examine the speaker’s purpose in employing such terms rather than assuming that the motivation is gender-based animus. Even where the motivation behind the harassment is gender neutral, however, a sexual harassment claim may lie if the method by which the harassment is carried out is motivated by the victim’s sex or exposes members of one sex to disadvantageous terms and conditions of employment when compared with members of the opposite sex.
Element Two: The Behaviour is “Severe or Pervasive.” You could apply the phrase “hostile environment” to assessing the behaviour that has constructively changed the complainant’s working conditions. You could go so far as to say that sexually harassing conduct, if sufficiently severe or pervasive, can so alter an employee’s working condition, even absent actual or threatened economic injury.
Courts have also held that is not meant to regulate same-sex horseplay or intersexual flirtation — both examples of “genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex.” Courts have also held that “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” Rather the “severe or pervasive” requirement is meant to “filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing,” limiting actionable claims to encompass only “extreme” conduct.
What precisely is a hostile or abusive environment? Harassing conduct must alter the conditions of the complainant’s employment to be actionable under the Equality Act. While psychological harm is relevant, neither psychological harm nor any tangible effect on the complainant need be proven to establish a hostile environment. It is sufficient if the environment would reasonably be perceived as, and the complainant did perceive it to be, hostile or abusive. A hostile environment claimant need not necessarily prove that the harassment actually interfered with the complainant’s work performance. On the other hand, such proof is exceedingly useful to the complainant.
Element Three: The Behaviour is “Unwelcome.” The gist “of any sexual harassment claim is that the alleged sexual advances were unwelcome.” Though the “unwelcome” requirement is litigated most frequently in sexual harassment cases, given that in race, national origin, and religion cases, the conduct is usually assumed to be unwelcome. Early cases focused more explicitly on the “unwelcome” requirement than do many recent decisions, perhaps marking some change in the attitude that the female victim may have been “asking for it.”
Element Four: The Basis for Employer Liability. Once the plaintiff has established a prima facie case of sexual harassment, the next question is who is responsible for the sexual harassment. To determine whether the employer is vicariously liable, the terms “quid pro quo” and “hostile work environment” no longer are controlling. Instead, liability depends upon who committed the harassment, whether the harassment resulted in a tangible employment action, and the employer’s response to the harassment. If the harasser is a supervisor, the employer must then convince the court (if that were the case) that no “tangible employment action” occurred in order to avoid vicarious liability. Only in the absence of a tangible employment action can the employer present an affirmative defence. Thus, oft-litigated issues include (1) who is a supervisor; (2) what is a tangible employment action; and (3) what constitutes “reasonable” action by employee and employer in the context of the affirmative defence?
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