Is Sexual Harassment a Form of Sex Discrimination?

How the Law Defines Sexual Harassment

Harassment based on protected characteristics, including sex, is prohibited under federal and state law. Although state statutes vary in wording, the federal framework is consistent. The U.S. Equal Employment Opportunity Commission (EEOC) explains that sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. It can also include offensive remarks about a person’s sex, even if no sexual advance is involved.

For conduct to rise to the level of unlawful harassment, it generally must meet one of the following standards:

One: The conduct is severe or pervasive* enough to create a hostile or offensive work environment.

Example:

During a closed-door performance meeting, Maria’s supervisor tells her that she would “get a lot further here” if she were more “approachable,” then puts his hand on her thigh. Maria leaves the meeting shaken and begins avoiding being alone with him.

A serious incident does not have to continue for months before it may become legally significant. It does not need to be repeated, either. A single severe incident can reach the threshold.

Two: The conduct results in a tangible employment action, such as termination, demotion, reassignment, or a materially negative change in compensation or responsibilities.

Example:

Jessica’s manager tells her that if she wants a promotion, she needs to “be more friendly after hours.” When Jessica declines invitations to meet privately, she is removed from a major project and later denied the promotion she was previously told she would receive. If a job benefit is conditioned on sexual conduct, or withheld after refusal, that may constitute unlawful harassment tied to a tangible employment action.

Additional principles also apply:

• The victim and the harasser can be of any sex, and they can be the same sex.
• The conduct does not need to be motivated by sexual desire to qualify. Per the EEOC, “sexual harassment can involve behavior that is intended to embarrass, intimidate, or belittle a person based on their sex.” It may have nothing to do with desire. A coworker or supervisor who repeatedly makes sexual comments about a female colleague may be trying to humiliate her or undermine her at work, rather than pursue her romantically.

Isolated teasing or offhand comments typically do not meet the legal threshold, but they may if they are graphic or vulgar, or if they involve some kind of touching or groping. If you’re unsure of whether the comments you’ve received at work qualify as sexual harassment, our team can help you.

*New York law offers broader protections, instead designating harassment as “an unlawful discriminatory practice when it subjects an individual to inferior terms, conditions or privileges of employment because of the individual’s membership in one or more of these protected categories.”

How the Law Defines Sex Discrimination

Sex discrimination concerns the treatment of someone in the workplace setting (an employee or applicant) in a negative manner due to the person’s sex. “Sex” in this context includes biological sex, gender, sexual orientation, transgender status, and pregnancy.

Sexual discrimination can take many forms, such as:

• The decision of whether to hire or not hire an applicant
• Whether to fire or not fire an employee
• Disciplinary actions taken against an employee
• How much an employee is paid or compensated, including employment benefits
• The job assignments and opportunities given or denied to an employee
• Promotions, career advancements, and layoffs
• Job training
• Any other term or condition of employment

When Sexual Harassment May Not Meet the Legal Definition of Sex Discrimination

Sexual harassment and sex discrimination often overlap, but they are not automatically interchangeable. Harassment focuses on conduct. Discrimination focuses on unequal treatment.

It is possible for conduct to be inappropriate, offensive, or even unlawful harassment without independently altering compensation, advancement, assignments, or other terms of employment. In those circumstances, the conduct may qualify as harassment without constituting discriminatory treatment.

For example:

• A partner who routinely comments on the way a new associate looks or dresses, or on how that woman’s clothes fit her, is engaging in sexual harassment.
• A partner who refuses to promote a new associate because she wears red dresses to the office instead of black pantsuits, or because that associate takes an early lunch on Tuesdays so she can Facetime with her child at daycare, is engaging in sex discrimination.

Note: a partner who routinely makes sexualized comments about an associate and is asked to stop, and then refuses to promote that associate, is engaging in retaliation, which can be both an act of sexual harassment AND an act of sex discrimination.

Gender-Based Harassment Without Sexual Conduct

Not all sex-based misconduct involves explicit sexual behavior. Harassment may consist of hostility, bias, or stereotyping tied to sex without any request for sexual conduct.

Examples may include:

• Repeated assumptions about a person’s competence based on sex
• Derogatory generalizations about men or women
• Persistent remarks reinforcing gender stereotypes
• Expressed bias in favor of one sex for certain roles or leadership opportunities
• Rationalizing differential treatment with sex-based justifications

Whether such conduct rises to the level of discrimination depends on its effect. If the behavior materially affects pay, advancement, assignments, or access to opportunities, it may constitute sex discrimination. If it does not alter employment conditions, it may still be actionable harassment without meeting the additional threshold for discriminatory treatment.