Sexual harassment is often viewed in an employer/employee context. Two ways for the employer to get into trouble is to allow a "hostile environment" or for "quid pro quo" sexual harassment to exist. The first kind of harassment occurs when the behavior unreasonably interferes with an employee's work performance or when the behavior negatively affects an employee's psychological well being because the environment is intimidating, hostile or offensive. The second type of harassment is more blatant. Here job benefits, continuation in the job or other employment decisions are based on the satisfaction of sexual demands. In either case, the employer is ultimately liable for what happens on the job.

The federal statute applies to employers with 15 or more employees; state law may differ.

A hostile environment can occur when repeated language or writing is obscene or lewd (including whistling or leers), when continued sexual or romantic advances are unwelcome, when pornographic or sexual material is displayed, or when persistent undesired touching occurs. For example, a female pilot for Continental Airlines complained several times to management about pornography male pilots left in the cockpit. The company did nothing. The jury awarded the female pilot $875,000.

This atmosphere can even be created by independent contractors or vendors. It is possible that a therapist who was repeatedly propositioned by a client, who complained to management about the client, and whose protests were ignored, could sue the employer for sexual harassment.

Quid pro quo harassment (job benefits conditioned on complying with sexual demands) is generally done by someone in authority, a supervisor or manager. If the employee agrees to the act, the coerced consent may not relieve the employer of liability. The harassment can be implied--a discussion of workplace issues followed by an improper request was held to be quid pro quo harassment. The harassment need not come before the request. An employee spurned a request and was later discharged for calling in sick; this was held to be harassment. No negative job consequence, such as being demoted or fired, is required for the employee to bring an action--simply the act of being asked and having refused is sufficient.

Employees who are not the direct victims of sexual harassment can still bring a sexual harassment claim when they are passed over for benefits because less qualified employees submitted to either kind of sexual harassment.

The U.S. Supreme Court has given employers a course of action. If the employer has a sexual harassment policy which prevents and corrects these problems and the victim-employee fails to use the channel(s) provided by that policy, the employer is protected. Every employer, therefore, should take the hint and draft a written policy.