Sexual Harassment Law
Sexual Harassment at Work: A Distinct Body of Law Within Sex Discrimination
Two Categories: Quid Pro Quo and Hostile Work Environment
- Quid pro quo harassment happens when submission to unwelcome sexual conduct is made a condition of a job benefit — for example, a supervisor implying that a promotion depends on accepting sexual advances, or that refusing will result in termination. If the harassment results in a tangible employment action (being fired, demoted, denied a raise), the employer is generally strictly liable, and cannot avoid responsibility by pointing to a strong anti-harassment policy.
- Hostile work environment harassment involves unwelcome conduct that is severe or pervasive enough to create an abusive working environment, even without a specific job benefit being conditioned on it. This is where a different set of employer liability rules applies — explained below.
What Makes Conduct "Severe or Pervasive"?
The Supreme Court addressed this question directly in Harris v. Forklift Systems (1993), holding that a hostile work environment claim requires conduct that a reasonable person would find hostile or abusive (an objective standard) and that the victim actually perceived as abusive (a subjective standard) — but does not require proof of psychological injury or that the employee’s job performance actually suffered.
- The frequency of the conduct
- Its severity
- Whether it was physically threatening or humiliating, or merely an offensive comment
- Whether it unreasonably interfered with the employee’s work performance
No single factor is required. A pattern of repeated, less severe incidents can be just as actionable as one serious incident, if the totality creates an abusive environment.
The Faragher-Ellerth Defense: A Critical Distinction for Employer Liability
- Supervisor harassment with a tangible employment action (firing, demotion, undesirable reassignment): the employer is strictly liable — no defense is available.
- Supervisor harassment without a tangible employment action: the employer can raise an affirmative defense by proving both (1) it exercised reasonable care to prevent and promptly correct harassing behavior, and (2) the employee unreasonably failed to take advantage of preventive or corrective opportunities the employer provided (such as failing to report the harassment through an available complaint process).
- Coworker harassment (by someone without supervisory authority): the employer is liable only if it knew or should have known about the harassment and failed to take appropriate corrective action.
What this means practically
Same-Sex and Third-Party Harassment Are Also Covered
Sexual harassment law is not limited to harassment by a man against a woman, or to harassment by a coworker or supervisor employed by the same company. The Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Services confirmed that Title VII prohibits same-sex sexual harassment — the harasser and the victim being the same sex does not defeat a claim.
Harassment by non-employees — clients, customers, vendors, or contractors — can also support a claim if the employer knew or should have known about it and failed to take reasonable steps to stop it, since employers generally have some degree of control over who is allowed to interact with their employees.
Bostock v. Clayton County
Harassment Based on Sexual Orientation and Gender Identity
DC and Maryland law independently and explicitly protect sexual orientation and gender identity as well, so employees in either jurisdiction generally have overlapping federal and local protection.
Retaliation for Reporting Harassment: A Broader, More Protective Standard
In that case, an employee who complained about her supervisor’s harassing comments was reassigned to a less desirable, dirtier job (though in the same pay grade) and later suspended without pay. The employer argued this wasn’t a serious enough consequence to count as illegal retaliation. The Supreme Court disagreed, holding that a retaliation claim only requires showing that a reasonable employee would have found the action “materially adverse” — meaning it might well discourage a reasonable person from making or supporting a complaint in the first place. This standard doesn’t require the retaliatory action to affect pay, title, or benefits the way a discrimination claim often does.
See our page on retaliation for reporting sexual harassment for a full breakdown of what this standard means for your situation.
Federal Limits on NDAs and Forced Arbitration
Two relatively recent federal laws limit what an employer can require you to sign away, specifically in the sexual harassment context — and they apply regardless of what you may have already signed at the start of your employment.
The Speak Out Act (2022) makes predispute non-disclosure and non-disparagement clauses unenforceable as they relate to sexual harassment or sexual assault disputes. A broad confidentiality clause you signed when you were hired generally cannot be used to silence you about a harassment or assault claim that arises later.
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022) gives you the unilateral right to bring a sexual harassment or sexual assault claim in court, even if you previously signed a predispute arbitration agreement, for any claim arising on or after March 3, 2022. Your employer cannot force arbitration for this specific type of claim regardless of what your contract says, and a court — not an arbitrator — decides whether the right applies.
See our page on Executive Employment Contract Issues for how these provisions typically appear in employment agreements.
Employer Obligations to Prevent Harassment
Beyond responding to complaints, many employers have affirmative obligations to prevent harassment in the first place — including maintaining a written anti-harassment policy, providing a clear complaint procedure, and in some jurisdictions, mandatory training. These obligations can vary by jurisdiction and are relevant both to whether an employer can invoke the Faragher-Ellerth defense and to what an employee is entitled to expect from their workplace.
What Counts as Sexual Harassment?
This can include:
- Unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature
- Offensive comments, jokes, or gestures related to sex or gender
- Displaying sexually explicit images or materials in the workplace
- Retaliation against an employee who reports harassment or participates in an investigation
Sexual harassment can occur regardless of the sex of the harasser or the person harassed, and can come from a supervisor, coworker, client, or other third party the employer has control over.
DC and Maryland: A Lower Bar Than the Traditional Federal Standard
Both DC and Maryland have moved toward a more employee-favorable “totality of the circumstances” harassment standard than the traditional federal framing. DC’s 2022 Human Rights Enhancement Amendment Act redefined harassment under the DCHRA using a totality-of-the-circumstances analysis, explicitly joining states like Maryland that already applied this approach — reinforcing the same factors described above (frequency, severity, whether the conduct was threatening or humiliating, and whether it interfered with work), without requiring any single incident to independently meet a “severe” threshold.
A Related, Recent Federal Development
In 2024, the U.S. Supreme Court’s decision in Muldrow v. City of St. Louis lowered the bar for what counts as an “adverse employment action” under Title VII more broadly, holding that a plaintiff need only show “some harm” to an employment term or condition — not a “significant” or “material” one. While Muldrow arose in the context of a discriminatory transfer rather than harassment specifically, some courts have since applied its reasoning to related Title VII claims, including hostile work environment cases. This is a developing area worth discussing with an attorney if it’s relevant to your situation.
What to Document If This Is Happening to You
If you’re currently experiencing harassment, a few practical steps can meaningfully strengthen a future claim, whether or not you’ve decided to take action yet:
- Write down what happened as soon as possible, including dates, times, locations, and exactly what was said or done
- Note the names of any witnesses, even if they didn’t say anything at the time
- Save any relevant emails, texts, or messages — don’t rely on your employer’s systems to preserve them for you
- Keep a copy of your employer’s anti-harassment policy and any complaint procedure it describes
- If you report the harassment, document who you reported it to, when, and what response, if any, you received
None of this is required to have a valid claim, but it can make a significant difference in how quickly and successfully a case moves forward.
Frequently Asked Questions
Do I have to report harassment to HR before I can bring a legal claim?
Not always — but whether and how you reported it can significantly affect your case, particularly under the Faragher-Ellerth framework described above. Talk to an attorney about your specific situation before deciding whether, or how, to report.
What if the harassment was from a client or customer, not a coworker?
You may still have a claim. Employers can be liable for harassment by non-employees if they knew or should have known about it and failed to take reasonable steps to stop it.
Is a single incident enough to bring a claim?
It depends on severity. A single sufficiently severe incident can support a claim on its own, while less severe conduct usually needs to be frequent or pervasive enough to create a hostile environment.
What if I’m afraid of retaliation if I report?
Retaliation for reporting harassment is illegal, and the legal standard for proving retaliation is broader, and often easier to meet, than the standard for the underlying harassment claim itself.
Can I still bring a claim if I signed an NDA or arbitration agreement?
Possibly. Recent federal law limits the enforceability of predispute NDAs and arbitration clauses specifically for sexual harassment and sexual assault claims — see the section above for details.
Related Practice Areas
Your situation may also involve one of these related areas of employment law:
Talk to a Sexual Harassment Attorney
Whether your situation involves quid pro quo harassment, a hostile work environment, retaliation for reporting, or some combination, the specific facts — who harassed you, whether you reported it, and how your employer responded — can significantly affect your case. Wilkenfeld Law Office can help you understand your strongest path forward.
Or call 301.245.3035 · Intake@WilkenfeldLO.com