Despite success in raising awareness of sexual harassment and changes in the law to address it more effectively, sexual harassment is still a widespread problem in workplaces in the U.S. It is illegal in the sense that it violates federal and state civil laws. But, is it ever also criminal? The answer is that some, but not all, acts of sexual harassment are also crimes
Sexual harassment in the workplace is generally treated as a civil wrong in the U.S. This means that the victim may sue the perpetrator (or, more typically, the employer) in civil court for monetary damages. (For information about civil liability, see our article Civil Liability.) Sexual harassment, as such, is not a crime under state or federal law in the U.S. However, certain acts of sexual harassment are also crimes.
Some other countries, including France and China, have enacted criminal laws to address sexual harassment specifically.
Both men and women may be the victims of sexual harassment. Sexual harassment at work is defined as:
Let’s break that down.
Consent is not necessarily a defense to sexual harassment, as it may be for sexual assault. Given the power dynamics that often operate between victim and harasser, a victim may not resist or may even consent to sexual conduct out of fear of job loss or other repercussions if he or she objects. In recognition of this reality, sexual harassment may occur even if a victim consents.
But, the victim must find the conduct unwelcome. So, a victim who grits his teeth and does not object to a manager’s constant sexual comments may experience sexual harassment under the law. By contrast, an employee who fully and without discomfort participates in sexual banter with her supervisor may not be able to establish that the conduct was unwelcome as required under sexual harassment law.
The conduct need not be explicitly sexual or motivated by the harasser’s sexual desires. If the conduct is sexual in nature or is directed at the victim because of his or her gender, it may constitute sexual harassment.
The unwelcome conduct has to rise to a certain level to amount to sexual harassment. It must either be severe (such as a physical assault) or pervasive (such as a constant barrage of commentary, requests for dates, offensive visuals, and the like). A single, minor incident (a dirty joke in the lunchroom) probably would not be recognized as sexual harassment under the law. But, a workplace where offensive visuals are allowed(photographs, drawings, or images on monitors and computer screens) may be a hostile working environment under sexual harassment law. So, sexual harassment includes conduct ranging from “cheesecake” calendar photos in the office to sexual assault by a co-worker.
Sometimes the harasser (or others in the workplace) takes adverse actions against the victim. These “tangible” actions can run the gamut from a bad performance review to termination and often (although not always) occur when a victim resists or objects to the harassment. The classic example is the victim who is fired after rejecting his manager’s sexual advances.
Although sexual harassment itself is not a crime, some sexually harassing conduct is criminal. This is because sexual harassment encompasses many actions, some of which (though not all) violate criminal statutes. For example, in most situations it's not a crime to display photographs of adults on one's computer that others find offensive and which may rise to the level of sexual harassment; but if the same actor physically assaults a co-worker, that's not only sexual harassment, it's also a crime.
In the most egregious incidents of sexual harassment—sexual assaults—the harasser is also a rapist and the assault may result in a criminal charge of rape against the assailant and a sexual harassment lawsuit against the assailant’s employer.
Intentional, offensive physical contact or threat of such physical may be a form of sexual harassment and it may also fall under the state’s assault and/or battery criminal laws.
Sexual harassment may involve the harasser restraining the victim’s freedom of movement (either with physical force or threats). Restraining another person may violate criminal laws prohibiting false imprisonment or unlawful restraint.
Some criminal codes prohibit bullying. Certain types of sexual harassment may fall under anti-bullying laws. An example is where a harasser posts sexually offensive comments about the victim on his or her social media page, knowing that co-workers view the page. And, where a harasser leverages sexual favors from the victim with the threat of adverse job action, that may also violate anti-bullying laws. A supervisor who writes up a subordinate after the subordinate refuses to go out with him is both sexually harassing the subordinate and bullying her.
Where a harasser follows the victim home, trolls him or her on social media sites, waits for the victim in the company parking lot, or engages in other stalking behavior, the harasser may also be charged with the crime of stalking.
Sexual harassment in the work environment often involves offensive visuals. If the visuals include child pornography, the harasser (and even the employer) may be guilty of violating child pornography criminal laws.
Whether or not offensive conduct is criminal, it can poison a working environment for the victim and for other employees. Employees are not powerless to confront such conduct, even when a boss or manager (or even company owner) engages in it. For information about what you can do if you experience sexual harassment at work, see our article Fighting Sexual Harassment. And, if you have questions about whether certain conduct is criminal, talk to a lawyer in your area experienced in criminal law.