Hostile Environment Sexual Harassment - Burdens of Proof

Burdens of Proof

Where a hostile environment is alleged, the legality of behaviors must be determined on a case by case basis. In the workplace, such a claim focuses on the working conditions that must be endured by the victim as a condition of employment, rather than on tangible job changes. To establish whether the situation is actionable the "totality of circumstances" must be weighed with an eye to determining "that the harassment affected a term, condition, or privilege of employment in that it was sufficiently severe or pervasive to alter the condition of the victim's employment and create an abusive working environment". To rise to the level of hostile environment, the behavior must be frequent, severe and pervasive. It is not enough that a single such incident, or a few isolated incidents, have occurred, or that only one employee engages in such conduct (unless that employee is in a supervisory capacity).

To establish a prima facie case for hostile work environment sexual harassment, the alleged victim must prove the following five elements:

1. He or she suffered intentional, unwanted discrimination because of his or her sex.
2. The harassment was severe or pervasive.
3. The harassment negatively affected the terms, conditions or privileges of his or her work environment.
4. The harassment would detrimentally effect a reasonable person of the same sex.
5. Management knew about the harassment, or should have known, and did nothing to stop it.