This is the second entry in a 5-part series about workplace sexual harassment, the Federal and State laws against such conduct, and what you can do if you are or become a victim of harassment. Today’s entry will provide an in-depth look at what goes into a sexual harassment claim, and what courts look at to determine the outcome of a harassment suit.
In Part 1 of our series, we covered how there are two types of claims that can be made in a sexual harassment lawsuit: “Quid Pro Quo” claims and “Hostile Work Environment” claims. In this entry, we’ll fill you in on the elements of each type of claim, or in other words, the points you have to prove in order to be successful in your claim for sexual harassment.
The Quid Pro Quo Claim
Quid pro quo sexual harassment, as we touched on before, is when a co-worker or supervisor tries to trade something, such as a promotion or better hours, for sexual favors. It could also involve someone threatening you with unfavorable employment actions unless you submit to their sexual demands.
In an action for quid pro quo harassment under Title VII of the Civil Rights Act, there are five elements that have to be proven:
(1) That the harassed employee is a member of a protected class;
(2) That the employee was subjected to unwelcomed sexual harassment in the form
of sexual advances or requests for sexual favors;
(3) That the harassment complained of was based on sex;
(4) That the employee’s submission to the unwelcomed advances was an express or
implied condition for receiving job benefits or that the employee’s refusal to submit to a supervisor’s sexual demands resulted in a tangible job detriment; and,
(5) The existence of respondeat superior liability.
There’s a lot to unpack there, so we’ll take it by each element:
Member of a Protected Class
A protected class is a group of people that share a common characteristic, who cannot be discriminated against simply because of that characteristic. For the purposes of a sexual harassment claim, the protected class in question is the gender of the victim. In most cases, this is fairly easy to prove based on observation that the victim is the gender he or she claims to be.
Unwelcomed Sexual Advances or Requests for Sexual Favors
In order for conduct to even qualify as harassment, it must be unwelcomed by the victim. For this element, courts look to whether or not the victim made it known to the harasser that his or her sexual advances were not welcomed.
Harassment Based on Sex
A victim of harassment must also show that, had he or she not been a member of that particular gender, the victim would not have been harassed.
Submission to Advances was a Condition for Job Benefits, or Refusal to Submit Resulted in a Tangible Job Detriment
This element basically describes the quid pro quo scenario: was the victim offered a reward of some job benefit (promotion, raise, etc.) for going along with the harasser’s unwelcomed sexual advances? Or, in the event that the victim refused the harasser’s sexual requests, was the victim injured in some job-related way? For instance, fired, passed over for a promotion for which the victim was qualified, or demoted?
Existence of Respondeat Superior
“Respondeat Superior” is a legal doctrine that determines if an employer is responsible for the actions of his employee. This element essentially determines whether the harasser was an employee of the victim’s employer, and also if the harasser was acting in the scope of his or her employment during the harassing conduct.
To establish a successful claim for quid pro quo harassment, all of the questions found in the above elements have to be answered affirmatively or shown to be true.
Because of the nature of quid pro quo, most of these cases involve harassment coming from a victim’s supervisor, although not all do. Some quid pro quo claims may involve merely another co-worker who holds some minor authority over the victim. Whether or not the harasser was a supervisor is an important question, because it affects the liability, or the responsibility, of the employer for the harasser’s conduct. Likewise, this also affects the employer’s responsibility to compensate the victim for the harasser’s conduct. We’ll discuss Employer Liability in a future article of this series.
The Hostile Work Environment Claim
As discussed in Part 1 of this series, a hostile work environment claim involves co-workers or supervisors engaging in unwelcome, inappropriate sexually-charged behavior that creates an intimidating, hostile, or offensive workplace environment. A claim for hostile work environment harassment would not likely include quid pro quo types of conduct, but would more likely involve inappropriate comments, jokes, touching, or sexual requests (without the promise of a benefit).
In order to establish a claim for hostile work environment harassment under Title VII, and its Kentucky law equivalent, KRS 344.040, the following five elements must be proven:
(1) That the victim is a member of a protected class;
(2) That the sexual harassment was unwelcome;
(3) That the harassment was based on sex;
(4) That the harassing behavior was sufficiently severe or pervasive to affect the
terms, conditions, or privileges of employment, or any matter directly or indirectly
related to employment, and,
(5) That a basis exists for holding the employer liable.
The first three elements are identical to the first three elements of a quid pro quo claim above, so we won’t discuss those any further. The last two elements, however, are much different, and could use some further explanation.
Harassing Behavior was Sufficiently Severe or Pervasive to Affect Terms of Employment
In order for a work environment to be deemed hostile, the harassing conduct occurring in the environment must be so severe or pervasive that it actually interrupts the victim’s ability to perform his or her job in some function. This means that the conduct must be continually happening – it can’t just be one or two isolated incidents of inappropriate behavior.
Courts make this determination by examining the totality-of-the-circumstances, or all the facts of the case together. They must decide two things for this element: (1) whether the work environment was objectively hostile enough to affect the victim’s employment, and (2) whether the victim subjectively believed the harassing conduct was severe enough to disrupt his or her work. Basically, the court asks if a reasonable person would find the harassing behavior severe or pervasive, and if this victim in particular believed this behavior to be severe or pervasive. A “no” answer to either of these questions is enough for a hostile work environment claim to fail.
A Basis Exists for Holding Employer Liable
This element examines whether an employer should be held responsible for the harassing conduct of its employees, and also to what extent it should be held responsible. The answer depends on which employees were doing the harassing. If supervisors were the employees creating the hostile environment, then the employer would be vicariously liable, or automatically responsible, for their conduct, subject to a few conditions. On the other hand, if only the victim’s co-workers were involved in the harassment, then the employer would be liable only if it (a) knew or should have known about the harassment and (b) failed to take immediate and proper action to fix the situation. This is known as a negligence standard. We’ll further discuss the issue of employer liability in our next article, but for now, just know that the victim of a hostile work environment has to show that the employer is liable.
Further Considerations on the Hostile Work Environment Claim
Because a hostile work environment suggests an atmosphere of hostility, the person bringing a claim for this type of harassment doesn’t necessarily have to be the target of harassment in order to succeed. If the harassment is severe and pervasive enough, it could possibly extend to other people working in the same area. This type of behavior can lead to others, not just the target of the harassment, feeling intimidated by just being around, and could consequently affect their ability to work as well.
Now you know the basic elements of a sexual harassment claim. If you are or become the victim of such harassment, remember the elements of these claims and be prepared to remember the important pieces of information that courts will want to hear. Write down names, dates, times, and events.
And above all else, seek out legal help. Abney & McCarty have filed claims like these numerous times before, and would like to help you out with your case. If you’ve been or are currently the victim of sexual harassment, contact us today.
 Highlander v. K.F.C. Nat. Management Co., 805 F.2d 644, 648 (6th Cir. 1986).
 42 U.S.C. § 2000e-2
 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 557, 68 (1986).
 Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).
 Ammerman v. Bd. of Educ. of Nicholas County, 30 S.W.3d 793, 798 (Ky. 2000).
 Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321 (6th Cir. 2008).