Specific Claims· 13 min read

Sexual Harassment: What You Need to Prove

Sexual harassment is one of the most frequently charged claims at the EEOC — and one of the most widely misunderstood. Two different legal theories cover different types of conduct, and the standards for proving each are distinct. Workers who conflate them, or who expect the law to respond to every offensive incident, often find the legal analysis doesn't match their intuition. Understanding the framework is the starting point.

Quid Pro Quo vs. Hostile Work Environment

Sexual harassment comes in two forms. Quid pro quo harassment involves conditioning a job benefit — a promotion, a favorable assignment, continued employment — on submission to sexual conduct. "Sleep with me or you're fired" is the paradigm. The conditioning of a tangible employment action on sexual conduct is per se harassment. Proof is relatively straightforward: the demand, the conditioning, and the adverse consequence for refusal. Hostile work environment sexual harassment involves severe or pervasive sexual conduct that alters the conditions of employment. Single incidents rarely meet this standard. The conduct must be severe (a sexual assault, an extreme threat) or pervasive (repeated offensive comments, unwanted touching, sustained sexual hostility). It must be both subjectively offensive to the plaintiff and objectively offensive to a reasonable person.

What You Need to Prove

For quid pro quo claims: (1) the plaintiff is a member of a protected class; (2) the plaintiff was subject to unwelcome sexual harassment; (3) the harassment was in the form of an explicit or implicit condition of a job benefit or continued employment; and (4) the plaintiff suffered tangible job detriment as a result of refusing or accepting the condition. For hostile work environment claims: (1) the plaintiff belongs to a protected class; (2) the plaintiff was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment was severe or pervasive enough to create an abusive work environment; and (5) the employer knew or should have known and failed to act.

The Reporting Requirement and Its Consequences

Reporting harassment to the employer — early, in writing, through official channels — does several things. It establishes the employer had notice. It triggers the employer's legal obligation to investigate. And it positions the plaintiff to defeat the Faragher-Ellerth affirmative defense, which allows employers to escape liability in supervisor harassment cases where the plaintiff unreasonably failed to use available complaint procedures. Workers who endure harassment without reporting, hoping it will stop, find that the employer's affirmative defense is available against them when they finally file. This doesn't mean workers can't win — but it makes the case harder.

The 2022 Federal Law Change

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022) prohibits enforcement of mandatory pre-dispute arbitration agreements for sexual harassment and sexual assault claims. Workers who previously would have been forced into private arbitration can now elect to bring these claims in court, even if their employment contract included a broad arbitration clause. This is a significant development that expands access to jury trials for harassment plaintiffs.

Key takeaways

Quid Pro Quo vs. Hostile Work Environment
What You Need to Prove
The Reporting Requirement and Its Consequences
The 2022 Federal Law Change

Citations

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) — Cited authority
Burlington Industries v. Ellerth, 524 U.S. 742 (1998) — Cited authority
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022 — Cited authority

Next deep dive

Age Discrimination (ADEA): What You Need to Prove