What is sexual harassment?

Most people think of sexual harassment as anything sexual being said by a member of the opposite sex or alluded to while at work. This is a very broad and general definition and does not address whether or not you would have a case for sexual harassment. Many times under the law the generally accepted definition of a term or phrase is not what the law forbids. Unfortunately, most of the cases of sexual harassment that we see involve assault, battery, unwanted sexual touching, and sometimes even rape or sexual assault.

In general, there used to be two main categories of actionable sexual harassment: “quid pro quo” harassment, meaning that sexual considerations were demanded in exchange for job benefits, and “hostile environment” harassment that “unreasonably interferes with an individual’s job performance,” or creates an “intimidating, hostile or offensive” work atmosphere, whether or not the harassment is linked to economic job consequences.


Whether the perpetrator’s actions were “welcomed” by the target is often a critical proof issue.

Severity or Pervasiveness

The type of claim commonly referred to as a “hostile environment” claim is established by proof of unwelcome sexual conduct of such a severe or pervasive nature that it alters the victim’s conditions of employment through the creation of an “abusive work environment” or hostile work place. A single incident will generally be considered “trivial” and hence non-cognizable unless foreseeable and particularly severe.

You are here on this website for a reason.

Do you feel you have been harassed on the job? Have you been the subject of unwelcome sexual behavior? Did you complain? What happened when you complained? Was there a prior history of harassment by this person? Did your employer know about it? Is there some reason your employer should have known about it? Are there other credible witnesses of harassment by this person? Will they testify honestly? Did a supervisor offer you something or threaten something as leverage for getting an opportunity for sex? Did you leave your job? These are all questions that must be answered at a free initial consultation.

If you believe that you have been sexually harassed, call me at (912) 244-3999 to schedule an initial consultation so we can sit down and talk about the facts of your case and so that I can give you my opinion about whether or not you have a case.

Filing Your Sexual Harassment Claim in Superior Court

In Georgia, sexual harassment litigation is not governed by the same statutory time limitations pertaining to Title VII litigation. That is, in Georgia, a victim of sexual harassment can file in state court under various tort based theories of recovery. Whether you have a case for sexual harassment should be discussed immediately with a Savannah Georgia sexual harassment attorney.

Filing Your Sexual Harassment Claim in Federal Court

In Georgia, a victim may also first file a charge of discrimination with the Equal Employment Opportunity Commission in which case a right to sue letter will be issued at the request of the charging party (1) after 180 days have elapsed (but before the completion of the administrative process); (2) after a finding of no probable cause; (3) after a finding of probable cause; and (4) on the failure of conciliation and a determination that the case will not be litigated by the EEOC as a party.

Whether or not you have a sexual harassment claim that would be successful in litigation depends in large part on the different classifications of both victim and offender and whether or not the harasser has done this before.

Why does it matter who the harasser is?

It matters because supervisor sexual harassment is generally actionable if all the other elements are present, but there are particular problems when the harassment is by coworkers or customers of the employer or where the employee has actually engaged in sexual activity with supervisors, managers, or other employees, and later raised claims of sexual harassment. In the end, a judgment against a non-supervisor may not be worth much because it may be difficult to collect the money. It is generally very important that the employer be liable for the sexual misconduct in order for the case to be worth taking to a jury. In considering whether or not the employer can be held liable for acts committed by non-supervisory employees depends on various factors and the specific facts of your case.

Employer Liability

Employer liability for sexual harassment is governed by two Supreme Court decisions, Burlington Indus., Inc. v. Ellerth and Faragher v. Boca Raton. These two decisions, issued on the same day, speak to the issue of employer liability for harassment committed by supervisory personnel.

Liability assessments before Ellerth and Faragher hinged on a distinction between “quid pro quo” and “hostile environment” harassment. In Ellerth and Faragher the Supreme Court discarded this distinction, replacing it with a new pivot point: the “tangible employment action.” A tangible employment action is defined as “a significant change in employment status,” such as dismissal, failure to hire or promote, demotion, or significant change in benefits. The term “hostile environment” has survived as the alternative to “tangible employment action,” and most courts sort sexual harassment cases into either one of these categories to determine employer liability. Ellerth and Faragher and their progeny hold that where there is a tangible employment action, the employer is strictly liable for the acts of the supervisor. Thus, if the plaintiff proves both harassment and a tangible employment action, the employer has no affirmative defense to vicarious liability. The employer is also strictly liable when the harasser is an individual who is an alter ego of the corporation, such as the owner, president, or chief executive officer.

In a sexual harassment–hostile work environment claim the employee claims to have been subjected to a hostile work environment because of sexual harassment. To establish a claim of hostile work environment sexual harassment, the employee must prove that he/she was sexually harassed and that the sexual harassment was so severe or pervasive or extensive that it permeated the work environment and altered the conditions of the employee’s employment.

“Sexual harassment” means unwelcome sexual advances, unwelcome requests for sexual favors, or other unwelcome verbal or physical conduct of a sexual nature. In deciding whether the claimed sexual harassment created a hostile work environment, the following factors are considered: (A) the physical environment of the employee’s work area; (B) the reasonable expectations of the employee upon entering the work environment; (C) the nature of the unwelcome sexual acts or words; (D) the sexual acts or words occurred one time or repeatedly; (E) the seriousness of the conduct; (F) the context in which the sexual harassment occurred; (G) whether the conduct was verbal, physical or both; (H) whether it was merely an isolated utterance; (I) whether it unreasonably interfered with the employee’s work performance; (J) the alleged harasser was a co-worker or supervisor; (K) others joined in the harassment; and (L) the harassment was directed at more than one person.

In deciding whether a hostile work environment existed, the evidence must be considered from the point of view of a reasonable person in the same or similar circumstances. The circumstances must be evaluated and a determination made whether the alleged harassing behavior is the kind of behavior that would create a hostile work environment for a reasonable person. The employee must also believe that he/she was subjected to a hostile work environment.

In hostile environment cases, where there is no tangible employment action, an affirmative defense is available. This defense has two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

If you believe that you have been sexually harassed, call me at (912) 244-3999 to schedule an initial consultation so we can sit down and talk about the facts of your case and so that I can give you my opinion about whether or not you have a case.