Recent allegations of “sexual misconduct” of high-profile men have led to social movements like #MeToo and #TimesUp. But it’s also caused confusion as to what that vague term means. Does sexual misconduct constitute a criminal act, a violation of civil law, or just offensive conduct that fails to trigger any legal consequences?
What Is Sexual Misconduct?
The term “sexual misconduct,” often used by the media when reporting on these high-profile cases, is not a legal term. Instead, it is a broad term used to capture a wide array of conduct, not all of which the law may prohibit. Just because an individual has been accused of sexual misconduct does not necessarily mean that they are exposed to criminal or civil liability.
What Is Sexual Harassment?
Although federal law does not criminalize sexual harassment, each state enforces laws that make this type of conduct illegal. Nevertheless, the federal law provides individuals with civil remedies to address gender discrimination, including but not limited to sexual harassment. For example, under Title VII of the Civil Rights Act of 1964, an employer cannot sexually harass its employees.
This statement then begs the question, what constitutes sexual harassment? Under the law, sexual harassment will either take the form of:
- quid pro quo harassment or
- severe or pervasive behavior that creates a hostile work environment.
Quid Pro Quo Harassment
This type of harassment will occur when an employer takes an action against an employee that affects them materially, such as terminating their position or denying them benefits, for refusing to submit to a supervisor’s sexual demands.
Hostile Work Environment
A hostile work environment will exist where the harassment is severe or pervasive enough to alter the conditions of the victim’s employment. Courts have delineated several factors to assess when determining whether the alleged conduct at issue is sufficiently severe or pervasive. These factors include:
- How often the behavior occurs;
- Whether the harassment is verbal or physical;
- The number of participants;
- If the accused harasser is in a supervisory position; and
- If a reasonable person would view the behavior as offensive.
However, federal courts have consistently held that an employee has a high burden of proof to make out a cognizable hostile work environment claim. As explained by the United States Supreme Court, federal law “does not set forth a general civility code for the American workplace.”
What Is Sexual Assault?
Both federal and state law imposes criminal penalties for engaging in acts of sexual assault. Sexual assault certainly includes rape. But it also encompasses a broad swath of different predatory conduct, such as unwanted groping or fondling.
Under federal law, sexual assault constitutes a sexual act committed on another person by threatening or causing them bodily harm. Federal law also defines sexual assault to include situations where the victim cannot provide consent to the sexual act, either because they are unconscious, asleep, impaired, or disabled. In contrast, state laws on sexual assault vary widely and have no standard definition.
Speak to a Criminal Defense Attorney to Learn More
Contact Samuel Louis Sachs LLC today at (609) 454-6716 to speak with a seasoned attorney and to learn more about sexual misconduct, harassment, and assault.