Definitions and Examples of Sexual Harassment
What Is “Sexual Harassment”?
Sexual harassment is a form of gender based discrimination and is unlawful under federal, state, and (where applicable) local law. Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity, and the status of being transgender. Sexual harassment is not limited to sexual contact, touching, or expressions of a sexually suggestive nature. Sexual harassment includes all forms of gender discrimination including gender role stereotyping and treating employees differently because of their gender.
Understanding gender diversity is essential to recognizing sexual harassment because discrimination based on sex stereotypes, gender expression and perceived identity are all forms of sexual harassment. The gender spectrum is nuanced, but the three most common ways people identify are cisgender, transgender, and non-binary. A cisgender person is someone whose gender aligns with the sex they were assigned at birth. Generally, this gender will align with the binary of male or female. A transgender person is someone whose gender is different than the sex they were assigned at birth. A non-binary person does not identify exclusively as a man or a woman. They might identify as both, somewhere in between, or completely outside the gender binary. Some may identify as transgender, but not all do. Respecting an individual’s gender identity is a necessary first step in establishing a safe workplace.
Sexual harassment is unlawful when it subjects an individual to inferior terms, conditions, or privileges of employment. Harassment does not need to be severe or pervasive to be illegal. It can be any harassing behavior that rises above petty slights or trivial inconveniences. Every instance of harassment is unique to those experiencing it, and there is no single boundary between petty slights and harassing behavior. However, the Human Rights Law specifies that whether harassing conduct is considered petty or trivial is to be viewed from the standpoint of a reasonable victim of discrimination with the same protected characteristics. Generally, any behavior in which an employee or covered individual is treated worse because of their gender (perceived or actual), sexual orientation, or gender expression is considered a violation of the College’s policy. The intent of the behavior, for example, making a joke, does not neutralize a harassment claim. Not intending to harass is not a defense. The impact of the behavior on a person is what counts. Sexual harassment includes any unwelcome conduct which is either directed at an individual because of that individual’s gender identity or expression (perceived or actual), or is of a sexual nature when:
- The purpose or effect of this behavior unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment. The impacted person does not need to be the intended target of the sexual harassment;
- Employment depends implicitly or explicitly on accepting such unwelcome behavior; or
- Decisions regarding an individual’s employment are based on an individual’s acceptance to or rejection of such behavior. Such decisions can include what shifts and how many hours an employee might work, project assignments, as well as salary and promotion decisions.
There are two main types of sexual harassment:
Hostile Work Environment: A sexually harassing hostile work environment includes, but is not limited to, words, signs, jokes, pranks, intimidation or physical violence which are of a sexual nature, or which are directed at an individual because of that individual’s sex, gender identity, or gender expression. Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, which interfere with the recipient’s job performance.
Quid pro quo: Sexual harassment also occurs when a person in authority tries to trade job benefits for, or conditions terms of employment on, sexual favors. This can include hiring, promotion, continued employment or any other terms, conditions or privileges of employment. This type of conduct is called “quid pro quo” harassment.
Any individual covered under this policy who experiences or witnesses harassment is encouraged to report it so that any violation may be corrected promptly. Any harassing conduct, even a single incident, may be addressed under this policy.
Examples of Sexual Harassment
The following is a list of examples of various acts / behaviors that may constitute unlawful sexual harassment:
- Physical acts of a sexual nature, such as:
- Touching, pinching, patting, kissing, hugging, grabbing, brushing against another employee’s body or poking another employee’s body;
- Rape, sexual battery, molestation or attempts to commit these assaults, which may be considered criminal conduct outside the scope of this policy.
- Unwanted comments, sexual advances or propositions, such as:
- Requests for sexual favors accompanied by implied or overt threats concerning the target’s job performance evaluation, a promotion or other job benefits or detriments;
- Subtle or obvious pressure for unwelcome sexual activities;
- Repeated requests for dates or romantic gestures, including gift-giving.
- Sexually oriented gestures, noises, remarks or jokes, or comments about a person’s sexuality or sexual experience, or romantic history which create a hostile work environment. This is not limited to interactions in person. Remarks made over virtual platforms and in messaging apps when employees are working remotely can create a similarly hostile work environment.
- Sex stereotyping occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people's ideas or perceptions about how individuals of a particular sex should act or look:
- Remarks regarding an employee’s gender expression, such as wearing a garment typically associated with a different gender identity; or
- Asking employees to take on traditionally gendered roles, such as asking a woman to serve meeting refreshments when it is not part of, or appropriate to, her job duties.
- Sexual or discriminatory displays or publications anywhere in the workplace, such as:
- Displaying pictures, posters, calendars, graffiti, objects, promotional material, reading materials or other materials that are sexually demeaning or pornographic. This includes such sexual displays on workplace computers or cell phones and sharing such displays while in the workplace.
- This also extends to the virtual or remote workspace and can include having such materials visible in the background of one’s home during a virtual meeting.
- Hostile actions taken against an individual because of that individual’s sex, sexual orientation, gender identity and the status of being transgender, such as:
- Interfering with, destroying or damaging a person’s workstation, tools or equipment, or otherwise interfering with the individual’s ability to perform the job;
- Sabotaging an individual’s work;
- Bullying, yelling, name-calling;
- Intentional misuse of an individual’s preferred pronouns; or
- Creating different expectations for individuals based on their perceived identities;
- Dress codes that place more emphasis on women’s attire;
- Leaving parents/caregivers out of meetings.
Who Can Be a Target of Unlawful Harassment?
Unlawful harassment can occur between any individuals, regardless of their sex or gender. Harassment does not have to be between members of the opposite sex or gender. New York Law protects employees, paid or unpaid interns, and non-employees, including independent contractors, and those employed by companies contracting to provide services in the workplace. Harassers can be anyone in the workplace. Harassers can be a superior, a subordinate, a coworker or anyone in the workplace including an independent contractor, contract worker, vendor, client, customer or visitor. Sexual harassment does not happen in a vacuum and discrimination experienced by an employee can be impacted by biases and identifies beyond an individual’s gender. For example:
- Placing different demands or expectations on black women employees than white women employees can be both racial and gender discrimination;
- An individual’s immigration status may lead to perceptions of vulnerability and increased concerns around illegal retaliation for reporting sexual harassment; or
- Past experiences as a survivor of domestic or sexual violence may lead an individual to feel re-traumatized by someone’s behaviors in the workplace.
Individuals bring personal history with them to the workplace that might impact how they interact with certain behavior. It is especially important for all employees to be aware of how words or actions might impact someone with a different experience than their own in the interest of creating a safe and equitable workplace.
Where Can Harassment Occur?
Unlawful harassment is not limited to the physical workplace itself. It can occur while employees are traveling for business, at employer-sponsored events, or at other occasions outside work. Calls, texts, emails, and social media usage by employees containing inappropriate messages, language, or graphics may also constitute or contribute to unlawful workplace harassment, even if they occur away from the workplace, on personal devices, or during non-work hours.
Unlawful harassment can occur when employees are working remotely from home as well. Any behaviors outlined above that leave an employee feeling uncomfortable, humiliated, or unable to meet their job requirements constitute harassment even if the employee or covered individual is at home when the harassment occurs. Harassment can happen on virtual meeting platforms, in messaging apps, and after working hours between personal cell phones.
What is “Retaliation”?
Retaliation is unlawful and is any action by an employer or supervisor that punishes an individual upon learning of a harassment claim, that seeks to discourage a worker or covered individual from making a formal complaint or supporting a sexual harassment, or other unlawful harassment or discrimination claim, or that punishes those who have reported or cooperated in an investigation of harassment or discrimination. Unlawful retaliation can be any action that could discourage a worker from coming forward to make or support a sexual harassment claim. Adverse action need not be job-related or occur in the workplace to constitute unlawful retaliation (e.g., threats of physical violence outside of work hours).
Examples of retaliation may include, but are not limited:
- Demotion, termination, denying accommodations, reduced hours, or the assignment of less desirable shifts;
- Publicly releasing personnel files;
- Refusing to provide a reference or providing an unwarranted negative reference;
- Removing an employee from projects because they complained or participated in an investigation;
- Undermining an individual’s immigration status; or
- Reducing work responsibilities, or passing over for a promotion.
Retaliation is unlawful under federal, state, and where applicable, local law. The New York State Human Rights Law protects any individual who has engaged in “protected activity.” Protected activity occurs when a person has: made a complaint of sexual harassment, either internally or with any anti-discrimination agency; testified or assisted in a proceeding involving sexual harassment under the Human Rights Law or other anti-discrimination law; opposed sexual harassment by making a verbal or informal complaint to management, or by simply informing a supervisor or manager of harassment; reported that another employee has been sexually harassed; or encouraged a fellow employee to report harassment.
Even if the alleged harassment does not turn out to rise to the level of a violation of law, the individual is protected from retaliation if the person had a good faith belief that the practices were unlawful. However, the retaliation provision is not intended to protect persons making intentionally false charges of harassment.