This document provides a summary of the law in this area and answers questions frequently asked of attorneys in the Office of General Counsel. However, the information presented here is intended for informational purposes only and nothing in this document should be construed or relied upon as legal advice. The Office of General Counsel or your Campus Legal Counsel should be consulted regarding the specific facts and circumstances associated with any legal matter.
Sexual harassment is a form of sex discrimination. State and federal law prohibit sexual harassment both in the workplace and in the academic environment. Board of Regents Policy 14-2 requires each campus in the UW System to implement a process to address allegations of sexual harassment, as well as offer educational programs informing employees and students about sexual harassment, and the applicable procedures, sanctions and remedies against it.
EMPLOYMENT: Sexual Harassment
Under Title VII of the Civil Rights Act of 1964, it is unlawful to discriminate against an individual in any aspect of employment on the basis of a person’s sex. This includes sexual harassment in the workplace.
Sexual harassment is defined as unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. Sexual harassment includes conduct directed by a person at another person of the same or opposite gender. “Unwelcome verbal or physical conduct of a sexual nature” includes, but is not limited to, the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee’s work performance or to create an intimidating, hostile or offensive work environment. There are two forms of sexual harassment - quid pro quo and hostile environment.
Quid Pro Quo
The term "quid pro quo" refers to situations in which a person is subjected to unwelcome sexual advances in which submission to or rejection of such advances is used by a supervisor or faculty member as the basis for an individual’s employment or academic experience. In other words, the victim is forced to choose between suffering a negative action in his or her employment or academic pursuits and submitting to sexual demands.
The term "hostile work environment" refers to situations in which the hostile, intimidating or offensive conduct of another unreasonably interferes with an employee’s work performance or a student’s academic learning environment. The conduct must be sufficiently severe and pervasive to create an intimidating, hostile, or offensive environment. Harassment is severe and pervasive when it occurs frequently, entails humiliation or physical threats, or unreasonably interferes with the victim's work performance or academic learning. Examples of a hostile environment may include unwelcome touching, suggestive jokes, comments or materials, uninvited sexual solicitations, intimidating words or acts, or display of pornographic materials. On the other hand, infrequent or minor offensive remarks will usually not rise to the level of a hostile environment.
The conduct does not necessarily have to be sexual in nature to constitute harassment. Any unwelcome conduct directed at a person because of his or her gender may constitute harassment. The law also recognizes a cause of action for same-sex harassment.Under both theories, the issue turns on whether an unwanted sexual behavior, conduct or condition has been imposed on a person's employment or academic environment on the basis of his or her gender. For any type of sexual harassment, a victim's toleration of or submission to the harassment does not bar a claim of harassment. If the conduct is unwelcome and has a demonstrated effect on an employee's conditions of employment or a student’s academic pursuits, it may constitute unlawful sexual harassment.
Employer Liability for Sexual Harassment
An institution may be legally accountable for sexual harassment committed by supervisory personnel under the theory that the supervisory personnel is acting on behalf of the institution. An institution is strictly liable for quid pro quo harassment committed by its supervisory personnel. Upon being notified of harassment, an institution must promptly respond to any instance of alleged sexual harassment. An institution may be legally accountable for sexual harassment committed by its supervisory personnel under a hostile environment theory if it fails to exercise due diligence and reasonable care to prevent, respond to and correct such harassment. However, an institution may avoid liability if it takes prompt remedial action in response to harassment and if the alleged victim fails to follow the institution’s policies and/or fails to take advantage of available preventive or corrective measures.
Harassment by Co-Workers
If an employee claims he or she was harassed by one or more co-workers, an employer may be liable if management knew or should have known of the alleged sexual harassment, and failed to take prompt remedial action. Once an employer has actual notice (victim files complaint) or constructive notice (employer should have known of harassment based on conduct and actions of both victim and harasser) of harassment by a co-worker, the employer (or the employer’s agent) must take corrective measures which are reasonably calculated to end the harassment. For example, the employer may change the victim’s or alleged harasser’s work schedule to avoid ongoing harassment and/or place the alleged harasser on leave pending an investigation. The employer should ask a victim his or her preferred remedy; however, it is the employer’s legal responsibility to make the final decision as to what action to take in order to appropriately and effectively respond to the harassment and implement measures to prevent and remedy any harassing behavior.
It is unlawful to take adverse action against an employee for reporting sexual harassment, filing a complaint or participating in an investigation of sexual harassment. This protection applies even if the investigation reveals a lack of sufficient evidence to prove that harassment occurred.
STUDENTS: Sexual Harassment
Under Title IX of the Education Amendment Act, it is unlawful to exclude a person on the basis of sex to participate in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. See also Board of Regent Policy 14-2. Specifically, a university official, employee or fellow student is prohibited from harassing a student on account of his or her sex. An institution may be liable for sex discrimination under Title IX if an appropriate official has actual notice of the harassment and, with deliberate indifference, fails to adequately respond to such harassment. Regent Board policy requires that institutions promptly investigate and address all reported instances of student harassment and/or discrimination.