Sexual harassment is a form of discrimination prohibited in the workplace under both Oregon law and federal law. Sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is always inappropriate workplace conduct and should be reported to your employer immediately.
Conduct that is not sexual in nature but is gender related and offensive may also be prohibited. Such conduct rises to the level of an actionable claim against the employer in the following circumstances:
1) when submission to the conduct is made either explicitly or implicitly a term or condition of employment;
2) when submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual; or
3) when the conduct is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with an individual’s work performance or creating a hostile, intimidating or offensive work environment.
A single incident may or may not be sufficient to create unlawful sexual harassment. For example, a single occasional comment like “Hey, baby” or “honey,” without more, probably will not constitute unlawful sexual harassment. But a single incident of extreme physical or verbal conduct, such as a boss requesting sexual favors to avoid termination, could constitute unlawful sexual harassment. Sexual harassment can occur between individuals of the opposite and same sex.
In order to constitute a claim for unlawful sexual harassment, the offensive behavior must also be unwelcome. Unwelcomeness may be indicated by complaints made by the affected employee to the perpetrator or to other people. It also may be expressed in nonverbal ways, such as attempts by the affected employee to avoid the perpetrator.
An employer is liable for sexual harassment when its owners, corporate officers or other high-ranking people in the organization are found to have sexually harassed an employee. An employer is liable for sexual harassment of an employee by a supervisor when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against the employee. Examples of tangible employment actions are demotion, failing to promote, discharge, or changing a term or condition of employment, such as work assignments or schedules. A supervisor is someone with immediate or successively higher authority over an individual. An employer is liable for sexual harassment between two coworkers, or sexual harassment of an employee by a non-employee, if the employer knew or should have known about the conduct. In Oregon, individuals can also be held liable for workplace sexual harassment under certain circumstances. Generally speaking, an employer can avoid liability for sexual harassment by showing that it took immediate and appropriate action to correct the harassment and the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, such as an internal grievance procedure for discrimination claims.
If you think that you have been sexually harassed, you should report the offensive conduct to a manager above the level of the alleged perpetrator. It is against the law for your employer to retaliate against you for reporting, or participating in an investigation of, possible harassment. If you sue without first trying to report the sexual harassment to your employer, you may lose if the employer would have no other reason to know about the harassment.
Employers should have a good sexual harassment policy with an appropriate grievance process. The policy should be given to every employee with a form acknowledging that each employee received, understands and agrees to abide by the policy. Employers should take all reports of sexual harassment seriously. When a complaint is made, someone who is trained in this area of law should do an immediate investigation.
Federal law requires complaints of sexual harassment to be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days — but agency rules advise employees to file their complaints within 240 days. Complaints can be made through the Oregon Bureau of Labor & Industries (“BOLI”) Civil Rights Division or the EEOC. Under Oregon law, an employee has one year from the date of the last discriminatory act to file a complaint with the state BOLI Civil Rights Division or to file a lawsuit against the employer. See Other Resources (Employment Law) for information on how to contact the appropriate agencies.
Employees who are victims of sexual harassment have various remedies available to them. For more information about sexual harassment, you should call an attorney.
Legal editor: Diane C. Cady, September 2019