Is it always sexual harassment if your boss hits on you?

People generally assume that their bosses should not hit on them, and they are generally correct.  However, someone asked Gold Star Law’s attorneys today- is it ALWAYS sexual harassment if your boss hits on you?  The answer is actually “no.”

Sexual harassment comes in two forms- hostile work environment and quid pro quo.  The type most people are familiar with is hostile work environment.  A work environment is “hostile” if the harassment is sufficiently severe and pervasive such that a reasonable person would find it intolerable.  Severe refers to how serious the harassment it, and pervasive refers to the frequency.  Generally, the more severe harassment is the less pervasive it has to be to be actionable, and vice versa.  So, if your boss politely asks you on a date and you decline, and a few months later asks again if you would reconsider, that behavior is neither severe (serious) or pervasive (frequent) enough to be considered illegal sexual harassment.  Alternatively, if your boss asks you every day, the harassment is much more pervasive and is more likely to be actionable illegal sexual harassment.

As an additional note, an employer is only liable in a sexual harassment claim when there is sufficient notice.  This means that the employer knew or should have known that the harassment is occurring and is unwanted.  In many situations that we have seen, a boss can flirt with or even be grossly inappropriate with an employee, but the employee goes along with it and never tells anyone that the behavior is offensive or unwanted.  In these cases, the employer has no notice of unwanted sexual harassment and thus cannot be reasonably expected to prevent it.  This is why it is important to make a (documented) complaint of sexual harassment if you are subjected to inappropriate sexual behavior at work.

The other kind of sexual harassment, called quid pro quo, exists where an employee’s acceptance or rejection of sexual harassment is made a condition of employment.  For example, if your employer offers you a promotion in exchange for sex, or threatens to fire you for complaining about being inappropriately touched, that would be quid pro quo sexual harassment.  In these cases, the action itself implies that there is notice, and it is almost always illegal.

If you believe that you have been sexually harassed and would like to speak to one of our attorneys, call Gold Star Law today.