Hostile environment harassment occurs when the plaintiff employee's work environment is made intolerable by sexual misconduct, or the work environment is permeated with unwelcome discriminatory intimidation, ridicule, and insult, based upon sex, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. Unwelcome sexual conduct that interferes with job performance or creates an intimidating, hostile, or offensive working environment creates a hostile work environment.
The plaintiff need not show that the harasser knew that the conduct was unwelcome, just that it was in fact unwelcome. In other words, the plaintiff doesn't not have to tell the harasser to stop or notify him that his comments and actions are upsetting.
The unwelcomeness does not have to relate to sexual harassment, or sexual advances. In order to allege a hostile work environment, it is not necessary to allege any sexual advances whatsoever. Nor does the conduct have to be stamped with explicit signs of overt discrimination, or be explicitly sexual in nature. It just has to relate to sex or be part of a course of conduct tied to evidence of discriminatory intent. Sexually harassing conduct that sufficiently offends, humiliates, distresses or intrudes upon its victims so as to disrupt their emotional tranquility in the workplace, affect their ability to perform their job as usual, or otherwise interfere with and undermine their personal sense or well being, constitutes a sexually hostile environment.
Determining whether a given situation constitutes a hostile environment is a "fact-based inquiry into the severity and pervasiveness of the conduct...the jury looks at all the circumstances supported by credible evidence." However, a single incident of sexual assault sufficiently alters the conditions of the victim's employment to create an abusive work environment. Evaluations of whether a hostile work environment exists are based on 1) the nature of the unwelcome sexual acts (considering that generally touching is more offensive than verbal remarks); 2) the frequency of the offensive encounters; 3) the total number of days over which all of the offensive conduct occurs; and 4) the context in which the sexually harassing conduct occurred.
If you believe you are facing a hostile work environment due to sexual harassment, an experienced employment lawyer can help you protect your rights.