Despite popular opinion, a valid sexual harassment case can be difficult to prove and cannot be premised on isolated events that are not serious in nature.  Instead, the employee who makes a legal claim of sexual harassment must show several elements, generally with proof by a preponderance of the evidence.

Harassment Is Because of Sex

It is not enough for an employee to be harassed in this context.  The conduct must be based on sex, such as sexually explicit comments or comments based on the employee’s gender.

Severe or Pervasive Requirement

The conduct of which the plaintiff is complaining must be severe or pervasive enough that it changes the employee’s working conditions.  This means that random horseplay or innocent flirting is not usually actionable.  Some courts have also denied claims regarding offhand comments, teasing or isolated incidents.

If the case proceeds to court, factors that are considered include how often the conduct occurred, how severe it was, whether the harassment involved threatening or humiliating conduct and whether the conduct unreasonably interfered with the employee’s work performance.  This is largely dependent on whether the conduct would be perceived by a reasonable person as being hostile or abusive.

Unwelcome

The plaintiff also has the burden of showing that the conduct was unwelcome.  This may be shown by the plaintiff presenting evidence that he or she asked the offender to stop.  This may be an issue that is highly contended in the sexual harassment context because the offender may say that the conduct was mutual and welcome.

Employer’s Liability

If the employee is seeking damages from the employer, he or she must show that the employer is liable.  This typically requires the employee to show that the employee availed himself or herself of any sexual harassment policy and that the employer failed to take proper steps to address the problem.  If the harasser is a supervisor, the employer has the burden of proof to show that no tangible employment action resulted that warrants liability.  Due to the heightened demands on the plaintiff and the employer’s desire to keep such matters private, parties may consider mediation to help resolve a sexual harassment case.