Hostile work environment harassment can be harder to spot than other forms of harassment, but not all sexual conduct in the workplaces rises to the level of unlawful harassment.
Hostile work environment sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with an employee’s work performance or create an intimidating, hostile or offensive work environment.
An employee claiming hostile work environment harassment will need to show that the conduct complained about was severe or pervasive enough to alter the conditions of employment and create a hostile or abusive work environment.1
In deciding if harassment is sufficiently severe or pervasive to create a hostile work environment, courts will look at all the circumstances, such as:2
- The nature of the conduct
- The frequency of the conduct
- The severity of the conduct
- It’s context
- Whether the conduct was physically threatening or humiliating or a mere offensive utterance
- Whether the conduct unreasonably interferes with an employee’s work performance
In addition, an employer can be liable for sexual harassment even when the offensive conduct was not directed at the person alleging the sexual harassment.3 Evidence of harassment directed at co-workers can be used to support an employee’s claim of hostile work environment harassment.4