If a supervisor commented on an employee's physical anatomy a few times and made several sexual jokes in her presence, is that sexual harassment?

Possibly, but remember that the plaintiff-employee must be able to show that the harassment was "severe and pervasive" and that it unreasonably altered the terms and

LegalSpeak: Title VII 42 U.S.C. Section 2000e-2(m)

(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices. Except as otherwise provided in this title [42 USCS §§ 2000e et seq.], an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

Harassment at work is not always between the sexes. Title VII protects you from being harassed by people of your own gender, as well (iStock).

Harassment at work is not always between the sexes. Title VII protects you from being harassed by people of your own gender, as well (iStock).

conditions of the workplace. A court might find that the conditions were too sporadic and not severe enough to impose liability.

Can employers assert any defense to supervisory harassment?

It depends on whether the employers have a defense if the harassment by a supervisory employee led to a tangible employment action being taken against the employee. In other words, if the employee had to quit because of the harassing conditions, the employer probably would have no defense, because there was a tangible employment action—a constructive discharge.

However, if the harassment does not end up in a tangible employment action, then an employer can assert an affirmative defense by showing two things: (1) that employer took prompt remedial action to ensure no further harassment; and (2) that the employee failed to take advantage of any existing anti-harassment policy or procedures put in place by the employer.

Does Title VII protect employees who are harassed by members of the same sex?

Yes, the U.S. Supreme Court ruled in Oncale v. Sundowner Offshore Services (1998; see LegalSpeak, p. 238) that Title VII also prohibits discrimination based on sex that

LegalSpeak: U.S. Supreme Court in Faragher v. City of Boca Raton (1998)

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

includes same-sex sexual harassment. Joseph Oncale alleged that he was sexually harassed by several male co-workers, including one who threatened to rape him. His complaints to supervisors went ignored and he sued under Title VII.

Does Title VII prohibit discrimination against transsexuals?

The courts are divided on this question. Transsexuals who have sued for unlawful sex discrimination generally advance two claims. First, they argue that they have been literally discriminated against because of their sex in violation of Title VII. Second, they argue that they have been subject to impermissible "sex stereotyping" by employers in violation of Title VII. This "sex stereotyping" claim arose from the U.S. Supreme Court's famous decision in Price Waterhouse v. Hopkins (1989) in which the Court ruled that a woman denied a promotion to partner because she did not supposedly conform to recognized gender stereotypes did present a claim of unlawful sex discrimination.

Many courts have rejected the first argument—that transsexuals are a protected class—but have accepted the second argument—that an employer can violate Title VII by imposing sexual stereotypes upon a transsexual.

Admittedly, this is a very difficult area of the law and once again shows the necessity of a skilled attorney to litigate these matters competently.

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