A. Definition of sexual harassment
According to Title IX, sexual harassment consists of unwelcome sexual advances, requests for sexual favors and any other verbal, nonverbal or physical behavior when
3. such conduct has the purpose or effect of substantially interfering with an individual’s academic or work performance, or creates an intimidating, hostile, offensive or demeaning education or work environment.
In order to determine whether conduct constitutes sexual harassment, the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred, shall be considered on a case-by-case basis.
B. Types of Sexual Harassment
A second type of sexual harassment consists of sexual conduct which unreasonably interferes with the work or learning environment or creates an intimidating, hostile, or offensive working or learning environment.
D. Manifestations of sexual harassment
Verbal sexual harassment may include, but is not limited to epithets, unwelcome derogatory comments or slurs of a sexual nature, unwelcome comments about an individual’s body or dress, questions or rumors about an individual’s sexual activity, sexually suggestive jokes and comments, graphic sexual comments, the use of sexually degrading language, unwelcome flirtation, invitations or propositions.
Nonverbal sexual harassment may include, but is not limited to, the display of sexually suggestive objects, pictures, videotapes, audio recordings or literature which may embarrass or offend individuals. Such materials are only permissible insofar as they are relevant to the subject matter being taught.
E. Because it is often difficult to ascertain whether or not sexual harassment has taken place, some legal concepts used to make such determination are helpful to understand:
1. “Unwelcome” advances
Clearly, if an individual states that the behavior in question is offensive and does not wish to be subjected to it, any continuation of the behavior can be construed as harassment.
2. “Reasonable Woman” standard
This is an important distinction in determining the occurrence of sexual harassment, because in cases where women are claiming to have been harassed, it is the feminine standard which is utilized to assess the behavior. For example, in work environments where pictures of undressed women are displayed, men might not find this offensive. However, a “reasonable woman” most likely would be offended by this display, and could, therefore, claim harassment.
Offending behavior does not need to be intentional in order to be considered sexual harassment. The fact that someone did not mean to harass an individual is not a defense against a complaint of sexual harassment. The impact on the complainant is a critical factor.