"Hostile work environment" sexual harassment occurs when an employee is subject to unwelcome advances, sexual innuendos, or offensive gender-related language that is sufficiently severe or pervasive from the perspective of a reasonable person of the same gender as the offended employee.
This type of harassment must be sufficiently severe or pervasive to alter the conditions of the offended employee’s employment and create an abusive environment. A single instance of sexual harassment in the hostile work environment context may be sufficient if the conduct is severe enough, but repeated instances increase the pervasiveness of the events, so that a reasonable person would be more likely to find the conduct sexually harassing due to its repetition.
It is possible for an employee to make a hostile work environment claim when the harassment is not directed to the complaining employee, if the harassment permeated the complaining employee’s work environment. Thus, an employee can make a hostile work environment claim if the employee witnessed the harassing conduct and the conduct was severe or pervasive enough to be considered harassment by a reasonable person with the same fundamental characteristics (e.g., age, race, gender) as the complaining employee.
Although favoritism by a supervisor towards an employee with whom the supervisor is having a consensual sexual affair does not ordinarily constitute harassment of other employees, a pattern of sexual favoritism may constitute a hostile work environment in the event that the message by management is that sexual affairs are a way to get ahead in the workplace.
In order to prevail on a hostile work environment sexual harassment claim against the harasser and the employer, a plaintiff must establish that:
The plaintiff was subjected to unwelcome sexual harassment;
The harassment was based on the plaintiff’s sex;
The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer.
© 2008 Broderick Law Firm, Inc.
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