Sexual harassment is usually a civil rather than a criminal matter. But it can become a crime if it is severe enough to violate criminal law. Some of these situations involve stalking, assault, sexual assault, or rape.
Just because it is not a crime, though, does mean that the victim cannot file a lawsuit against their harasser or employer.
What is sexual harassment?
When it happens in the workplace, there are 2 forms of sexual harassment:
Sexual harassment can create a hostile working environment if it involves unwanted conduct of a sexual nature that is either severe or pervasive.1
Sexual harassment can also take the form of a quid pro quo. The phrase is Latin for “this for that.” It involves a supervisor providing benefits in the workplace in exchange for a sexual favor.2 It also covers the demand for a sexual favor in exchange for a favorable employment decision, like getting hired.3
When can it be a crime?
Severe instances of sexual harassment can be a crime if it violates a criminal statute. Most instances of sexual harassment do not amount to a crime. However, some can. Some of the most common criminal instances of sexual harassment involve:
- assault and battery,
- sexual assault,
- indecent exposure,
- false imprisonment, and
Some of these offenses are misdemeanors, while others can be felonies. Many are sex crimes that carry additional penalties, like sex offender registration. However, most of them require physical conduct rather than just sexual comments.
Stalking is the crime of harassing or threatening someone to the point that they fear for their safety.4 The elements of the crime are:
- the defendant willfully and maliciously harassed or repeatedly followed another person, and
- the defendant made a credible threat with the intention of putting the other person in reasonable fear for their safety or the safety of their immediate family.5
Workplace sexual harassment rarely amounts to the crime of stalking. However, it can, especially if the harasser and the victim were romantically involved in the past. It generally requires a large number of phone calls and text messages before it becomes a legal issue, though.
Assault and battery
Different state laws handle assault and battery differently. Generally, though, they are distinct offenses:
- assault is an unlawful attempt to hurt someone else, with the present ability to do so,6 while
- battery is a willful and unlawful use of force on someone else.7
For example: Jake throws a punch at Mark but misses. This is an assault but not a battery. Jake throws another punch at Mark and hits him in the midriff. This is an assault and a battery.
Importantly for sexual harassment, though, battery does not need to cause a serious injury. Instead, it only requires a harasser to willfully touch you in a harmful or offensive manner.8 This makes assault or battery one of the most common criminal offenses that can come from workplace harassment.
For example: Carl and his male friends at the office make sexual jokes about Monica in the workplace. One day, Carl escalates the joke by slapping Monica in the rear.
Sexual assault is the crime of touching someone else’s intimate parts against his or her will and for the purpose of sexual gratification.9 The offense is sometimes referred to as sexual battery, sexual abuse, or unlawful sexual contact.
The offense does not require sexual intercourse or penetration – mere physical contact suffices, even if it is done through clothing.10 Because this low standard for criminality involves most forms of unwanted touching, sexual assault is another common criminal offense to follow from sexual harassment.
For example: Bob walks past his coworker Beth in the break room and runs his hand across her breasts.
Indecent exposure is the crime of willfully exposing your genitals in public to offend others.11 Some states also require that the exposure be done for someone’s sexual gratification.12
The crime of false imprisonment involves unlawfully confining or moving someone against their will.13 While the term conjures images of kidnapping or holding someone hostage, the crime is satisfied whenever a harasser makes their victim stay or go somewhere against their will.14 This makes it another common criminal charge to stem from workplace sexual harassment.
For example: Carol is called into the office of Dave, her boss. Dave makes unwelcome sexual advances on Carol. Carol turns to leave the office, but Dave closes the door. When Carol demands to be let out, Dave refuses.
Note that false imprisonment does not require a sexual act or any sexual conduct.
Rape is the crime of using force, threats, or fraud to have non-consensual intercourse with someone else.15
A criminal allegation of rape is rare for sexual harassment situations. Generally, harassment does not go so far as to result in non-consensual intercourse. However, it can happen.
When can I file a lawsuit for a violation of sexual harassment laws?
Just because sexual harassment does not amount to criminal conduct does not mean that you do not have legal recourse. You can still file a lawsuit in civil court against your harasser and, in some cases, against your employer, as well. These sexual harassment claims allege that you were the victim of sexual harassment that amounted to a:
- hostile work environment, or
- quid pro quo.
These lawsuits can be filed under state anti-discrimination laws like California’s Fair Employment and Housing Act (FEHA).16 They can also be filed under Title VII of the Civil Rights Act of 1964, the leading federal law regulating conduct in the workplace.17
These civil lawsuits can demand financial compensation for your mental anguish, emotional distress, and pain and suffering, as well as back pay and front pay.
Can I hold my employer liable for workplace harassment?
Victims of certain types of sexual harassment in the workplace can hold their employer liable in 2 circumstances:
- the harassment was conducted by a supervisor, or
- the employer knew or should have known about the harassment but failed to take appropriate remedial action.18
If the harassment was conducted by a supervisor, the employer is strictly liable if it involved a tangible employment action.19 If there was no such action, the employer can avoid liability only if it can show that:
- it exercised reasonable care to both prevent and quickly correct the harassment, or
- the victim unreasonably failed to make use of the provided internal remedies.20
Holding your employer liable is essential. Your employer far more likely to have the assets to cover a settlement or a verdict related to the sexual misconduct than your harasser. Getting legal advice and representation from an employment lawyer at a reputable law firm is crucial.
- Meritor Savings Bank, FSB v. Vinson, 106 S.Ct. 2399 (1986).
- Burlington Industries Inc. v. Ellerth, 118 S.Ct. 2257 (1998).
- See California Penal Code 646.9 PC.
- California Criminal Jury Instructions (CALCRIM) No. 1301.
- See California Penal Code 240 PC.
- See California Penal Code 242 PC.
- CALCRIM No. 960.
- See California Penal Code 243.4 PC.
- California Penal Code 243.4(e)(2) PC.
- See California Penal Code 314 PC.
- See CALCRIM No. 1160.
- See California Penal Code 236 PC.
- See CALCRIM No. 1242.
- See California Penal Code 261 PC.
- California Government Code 12940 GOV.
- 42 USC 2000e et seq.
- Burlington Industries Inc. v. Ellerth, supra note 3.