When Does Non-Physical Conduct Constitute Sexual Harassment in the Workplace?

While many cases of workplace sexual harassment involve nonconsensual physical contact, non-physical conduct can constitute sexual harassment as well. This is true under both Title VII of the Civil Rights Act of 1964 (which prohibits sexual harassment as a form of sex-based discrimination) and the Maryland Code (which addresses sexual harassment specifically). If you have experienced non-physical sexual harassment in the workplace, you have clear legal rights, and you should consult with an experienced Maryland employment attorney about asserting your legal rights promptly.

Filing a Claim for Non-Physical Sexual Harassment in Maryland

While Title VII and the Maryland Code address sexual harassment in different ways, they both cover various forms of non-physical conduct. With regard to Title VII, the U.S. Equal Employment Opportunity Commission (EEOC) makes this clear, stating:

“Offensive conduct [that constitutes sexual harassment] may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.”

Similarly, the Maryland Code defines sexual harassment as follows:

“’Sexual harassment’ includes conduct, which need not be severe or pervasive, that consists of unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature . . . .”

In other words, while sexual harassment can involve physical conduct, it doesn’t have to. Employees in Maryland can also pursue sexual harassment claims against their employers based on various forms of non-physical conduct that is sexual in nature. While it is necessary to assess every situation on a case-by-case basis, generally speaking, forms of non-physical conduct that can be classified as sexual harassment include (but are not limited to):

• Offensive jokes and comments
• Threats of sexual assault or intimidation that are sexual in nature
• Sending sexually explicit photos or videos
• Unwelcome sexual advances and requests for sexual favors

Under federal law, non-physical sexual conduct must create a “hostile work environment” in order to justify legal action. This means that it must be severe and pervasive enough that it “create[s] a work environment that would be intimidating, hostile, or offensive to reasonable people.” As a result, isolated incidents generally are not enough to support a sexual harassment claim under Title VII—although there are exceptions.

In contrast, Maryland has specifically amended its sexual harassment law to eliminate the requirement for non-physical conduct to be severe or pervasive. This is evident in the quote above. Today, employees can pursue sexual harassment claims under Maryland law if they can prove any one (or more) of the following:

• Submission to the sexual conduct is, “either explicitly or implicitly a term or condition of employment;”
• Submission to the sexual conduct is used as a basis for an employment-related decision;
• Rejection of the sexual conduct is used as a basis for an employment-related decision; or,
• The sexual conduct “creates a working environment that a reasonable person would perceive to be abusive or hostile.”

Importantly, while Title VII only applies to employers with 15 or more employees, Maryland’s sexual harassment law applies to all employers in the state. As a result, any employee who experiences any form of non-physical sexual conduct that involves any of the four scenarios we just listed can potentially take legal action against their employer (or former employer).

Documenting Non-Physical Sexual Harassment in the Workplace

With all of this in mind, if you have experienced non-physical sexual harassment in the workplace, what should you do? In this situation, one of the most important things you can do is document your situation as thoroughly as possible. Among other things, this means that you should take detailed notes, keep copies of all relevant communications (if possible), and file a written complaint with your employer. If you aren’t comfortable taking any of these steps on your own, you can—and should—hire an experienced Maryland employment attorney to assist you.

When you hire an experienced Maryland employment attorney, your attorney will also be able to take appropriate legal action for you. Your attorney can help you decide what remedies you want to pursue, and then your attorney can use his or her experience to seek to hold your employer accountable on your behalf.

Schedule a Confidential Consultation with a Maryland Employment Attorney Today

Do you need to know more about pursuing a claim for non-physical sexual harassment at work in Maryland? If so, we strongly encourage you to get in touch with us. Please call 410-514-6099 or contact us online to arrange a confidential consultation with an experienced Maryland employment attorney at The Law Firm of J.W. Stafford.