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Sexual Harassment: What Does the Requirement of Severe or Pervasive Harassing Conduct Mean?

Sexual Harassment: What Does the Requirement of Severe or Pervasive Harassing Conduct Mean?

By Malatesta Law on October 15, 2017

To establish a claim for hostile environment sexual harassment, an employee must establish the following:

  1. The employee was subjected to unwelcome sexual advances, conduct, or comments;
  2. The harassment was based on sex; and
  3. The harassment was so severe or pervasive so as to alter the conditions of the victim’s employment and create an abusive working environment.

What Constitutes Severe or Pervasive Harassment?

First, it must be recognized that the harassment must be either severe or pervasive. An employee need not show that the harassment was both severe and pervasive.

Harassment is severe if it is conduct that goes beyond the boundaries of appropriate workplace behavior.

Harassment is persistent if it is ongoing, continuous, and/or repeated.

To determine whether harassment is sufficiently severe or pervasive so as to constitute unlawful harassment, it is helpful to examine the following factors:

  1. The frequency of the harassing conduct;
  2. The severity of the harassing conduct;
  3. Whether the harassing conduct is physically threatening or offensive comments;
  4. Whether the harassing conduct unreasonably interferes with the employee’s work performance.

Factor #1: Frequency of the Harassing Conduct

To be considered pervasive, the harassing conduct must be sufficient in number and continuous. Isolated incidents of harassment, usually will not be sufficient to constitute harassment unless those isolated incidents constitute severe acts of harassment.

Factor #2: Severity of the Harassing Conduct

This factor assesses the nature of the harassing conduct. The worse the harassing conduct is, the more severe it will be considered. For example, a supervisor grabbing an employee’s buttocks is more severe than a supervisor telling an employee that she has a “nice ass.”

Factor #3: Whether the Harassing Conduct is Physically Threatening or Offensive Comments

Harassing conduct that involves physical touching, i.e. grabbing, groping, kissing, touching, is more severe than harassing conduct than is verbal, i.e. offensive sexually based comments.

Factor #4: Whether the Harassing Conduct Unreasonably Interferes with the Employee’s Work Performance

The worse the harassing conduct is and/or the more instances of harassment there are, the more likely it is that the harassment affected the employee’s ability to do their job.

Take-away: Not all of these factors, nor one single factor, is required for an employee to be able to show that the harassment they suffered was sufficiently severe or pervasive. Rather, these are simply factors that are used to help analyze whether the harassing conduct was sufficiently severe or pervasive to constitute unlawful sexual harassment. Ultimately, the totality of the harassing conduct is analyzed to determine if the harassment was sufficiently severe or pervasive.

The Severity and Pervasiveness of the Harassing Conduct is Measured Both Objectively and Subjectively

What Does This Mean?

This means that the individual subjected to the harassment must have felt that the harassing conduct they were subjected to was severe or pervasive and also that a reasonable person in that employee’s position would have also felt that the harassing conduct was severe or pervasive.

Posted in: Harassment