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Sexual harassment is a form of gender discrimination. There are two theories under which an employee may recover for sexual harassment. The first, “quid pro quo” harassment, occurs when any employee offers any job benefit, or threatens any job detriment, in exchange for sexual favors. In lay terms, this means that any time an employee promises, either expressly or impliedly, that career advancement may be linked to dating or sex, the law has been violated. However, unless the harasser is a supervisory employee, the Company would not be liable unless it knew of the harassment, or should have known. As a practical matter, you may show that the Company knew or should have known of the harassment by demonstrating that it was so pervasive, i.e., frequent, that the company had to know. You may also establish the Company’s knowledge by showing that the harasser had committed similar offenses previously. Certainly, if you or any other employee had previously complained to any supervisor, likely the company would be held responsible.

The second type of sexual harassment is established when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of employment and create a “hostile” or “abusive” work environment. Both men and women may sue for sexual harassment. The harasser need not be of a different gender than the victim and the victim need not prove that the harasser was motivated by sexual attraction. This type of harassment most commonly manifests itself in numerous sexual or sexist comments, negative stereotypes about the victim’s gender, sexual jokes, propositions, lewd remarks or insults directed at one sex but not the other. If the comments are severe or frequent enough that the victim’s belief that his/her work environment is “hostile or abusive” is both objectively and subjectively reasonable, the law is violated. However, unless the victim considered the comments or conduct “unwelcome” at the time they occurred, there is no actionable claim for sexual harassment regardless of the severity of the conduct.

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