To prove a case of hostile work environment sexual harassment, a sexual harassment victim must prove that:
1. He or she was subject to unwelcome sexual harassment;
2. The harassment was based on his or her sex;
3. The harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and
4. The relationship between the employer and the person committing the harassing conduct is adequate to impose liability on the employer.
“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.
To be actionable in court, sexual harassment in the workplace 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.
In order for an employee to prove that the sexual harassment in the workplace he or she suffered was based on his or her sex, an employee must show that he or she was treated differently because of his or her sex. When the sexual innuendos or gender-related speech, such as talk of sex in the workplace, crude language, or vulgar gestures, are directed toward an employee or toward an employee’s gender in general, this conduct will constitute hostile work environment sexual harassment if it is sufficiently severe or pervasive.
It can be difficult to determine whether flirting at work will qualify in court as sexual harassment in the workplace without knowing the exact facts of a particular case. However, when flirting at work is unwanted and severe or pervasive, a court may decide that it constitutes unlawful sexual harassment. Because there can be some uncertainty about whether flirting or advances are unwanted, it is important for the offended person to make it clear that the flirting or advances are unwanted.