When does sexual harassment become a crime? It’s a high bar.

Traditional methods of training for sexual harassment can backfire, but ideas like teaching bystanders to intervene and promoting more women have proved effective. [Lorraine Sorlet | The New York Times]
Traditional methods of training for sexual harassment can backfire, but ideas like teaching bystanders to intervene and promoting more women have proved effective. [Lorraine Sorlet | The New York Times]
Published November 17 2017
Updated December 19 2017

The stories keep coming.

Morning show host Matt Lauer, Alabama judge Roy Moore, U.S. Sen. Al Franken, dozens of workers for a massage therapy chain.

These and many more have been accused of sexual misconduct in the recent wave of allegations that has roiled the political, news and entertainment worlds. Those on the receiving end of their unwelcome behavior say the accused seemed unaware of workplace rules and customs, or at least willing to flaunt them.

So what are the rules? What does the law say? Where are the lines?

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Legally, the bar is high for what is considered sexual harassment, said University of Florida associate law professor Stephanie Bornstein. Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, which includes sexual harassment.

The key words when applying it to law are "severe or pervasive." An unwelcome remark, a pattern of behavior or a single action must be either severe or pervasive in order to take a claim to civil court. But many factors come into play, Bornstein said.

In the case of a remark, for instance, was it directed at the person? Or was it "watercooler talk" that someone overheard and found offensive? Did it happen more than once? And, if so, how often? Was it humiliating or threatening? Did it have an impact on the employee’s workplace?

"The whole concept of why it’s illegal is because it’s discrimination based on sex," Bornstein said, so comments that aren’t necessarily sexually explicit, but offensive toward a sex, can be considered sexual harassment.

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In the recent accounts of high-profile men sexually assaulting or harassing women— exposing themselves, for example, or tying the interaction to job performance — there is no subtlety or reason to doubt that the actions are discriminatory, Bornstein said.

But in situations where actions are not as overt, how can you tell if it’s sexual harassment?

Jason R. Bent, an associate law professor at Stetson University College of Law, said he often saw serious and clear-cut cases of harassment when he was an attorney practicing employment discrimination law. He’s also seen instances when actions that wouldn’t always be considered offensive, can quickly rise to the level of "severe or pervasive."

Those actions include: a pat on the butt, a kiss on the cheek, shoulder rubs, indirect sexualized remarks or jokes, remarks about sexual favors for a job opportunity, or hugging.

Yes, hugging.

In 2012, a female correctional officer in California took the Yolo County Sheriff to court for giving her numerous unwelcome hugs that, she says, left her anxious, stressed and unable to sleep.

Victoria Zetwick said Sheriff Edward G. Prieto gave her more than 100 unwelcome hugs, and even a kiss, creating a sexually hostile work environment, according to court documents. She is also suing the county for failing to prevent the sexual harassment.

In 2014, a local judge dismissed Zetwick’s claims and ordered the case closed. But Zetwick took her case to the Ninth Circuit Court of Appeals, which said her claims deserved to be heard by a jury and ordered that the lower court hold a trial.

Zetwick described a 2003 awards ceremony at which Prieto moved to kiss her on the cheek and it partially landed on her lips as she turned her head. She expressed shock to her husband, coworkers and a supervisor, but it went unreported. In 2010, the sheriff approached her and said he had heard from others that she had complained about his hugs. He said he wouldn’t hug her in that moment, then did it anyway.

Zetwick also said she saw Prieto hug other female employees, but give handshakes to male workers, and she presented evidence to prove it. Prieto argued that he hugged men, but didn’t prove he did it as often as he hugged women.

He also insisted that his actions were "socially acceptable conduct," and argued that Zetwick hugged other male employees and occasionally joined in banter about his hugs.

Zetwick said she faced teasing from coworkers about the sheriff’s approaches.

The lower court decided Zetwick wasn’t able to prove Prieto created a hostile work environment. But the appellate judges agreed that hugging, if unwelcome and pervasive, can create a hostile or abusive work environment.

According to workplace consultant Elaine Herskowitz, "there is no magic number" of instances when it comes to proving whether behavior has been pervasive enough to consider it sexual harassment.

Herskowitz has been called on by private companies and federal agencies to investigate allegations. An isolated remark is unlikely to rise to a claim, she said.

Bornstein agreed. "A ‘You look nice’ is not going to rise to sexual harassment," she said. But if someone told a woman she should dress more provocatively for work, that could cross the line, she said.

So, has the recent spate of allegations changed the way sexual harassment claims are viewed?

It’s difficult to say, said Herskowitz, who formerly worked with the Equal Employment Opportunity Commission as an attorney and helped draft policy in the 1980s recognizing sexual harassment as a form of discrimination.

What can be confusing for employers, she said, is knowing their role in reporting sexual harassment to the EEOC. Employers are responsible for implementing policies that prevent sexual harassment, and if management becomes aware of a situation, or starts to hear rumors, they have a duty to act, she said.

"Employers can’t sit back and do nothing if they’re aware of remarks or behavior," she said. If they don’t, employers can be held responsible, along with the accused.

In one case Herskowitz investigated, a woman working in a warehouse setting confided to her supervisor that she had been sexually assaulted. The supervisor had a duty to tell the employer, which launched an investigation. The woman was unwilling to go forward, but because her supervisor knew, it had to be addressed at the management level.

Herskowitz said the last time sexual harassment was talked about this widely was in the 1990s, another watershed moment, when Anita Hill testified against Clarence Thomas in Senate confirmation hearings. After Hill’s accounts of the Supreme Court nominee harassing her after she rebuffed his dating invitation, women were less willing to put up with sexual advances or jokes, she said.

Compared to 30 years ago, it may be easier for a judge to send it to a jury, and perhaps, for a jury to find that more behaviors or remarks are severe or pervasive, said Bent, the Stetson law professor.

"It might be that a jury might be more easily convinced now," he said, but it’s hard to say whether that is the case.

House Speaker Paul Ryan’s announcement to mandate sexual harassment training for all House members is an example of how employers can take claims seriously, he said.

And what can workers do if they are sexually harassed?

The answer seems simple: Tell a supervisor.

But the fear of retaliation lingers, and Bent is not convinced workplace claims will rise. It seems unlikely that people who provide for their families are going to risk their jobs to file a claim, he said.

Even though society is showing less and less tolerance for sexual harassment, "the fact that women and victims of harassment are still afraid to come forward and do something about it is still a problem," Bornstein said.

Still, it’s important for employers to address allegations, Herskowitz said.

"In terms of your rights, in your day-to-day behavior," she said, "you don’t have to tolerate intimidating hostile behavior."

Contact Melissa Gomez at [email protected] Follow @melissagomez004.