Courts use primarily the "reasonable person" standard combined with criteria of severity and pervasiveness to determine whether conduct is unwelcome, offensive sexual harassment. Conduct must be unwelcome and either severe or pervasive enough that a reasonable person would find it hostile or offensive in the context where it occurs.
Reasonable Person Standard
The courts assess whether the conduct is objectively unwelcome and offensive based on what a reasonable person in the victim's position would perceive. This standard includes consideration of the harasser's intent and the victim's reaction but focuses on how the conduct would be viewed by a reasonable person, promoting an objective measure rather than purely subjective feelings.
Severity and Pervasiveness
To establish sexual harassment, conduct usually must be either severe or pervasive. Severe means the conduct is egregious or intense (e.g., assault), while pervasive refers to conduct that is frequent or widespread enough to create a hostile environment. Courts apply this "severe or pervasive" test to avoid trivial claims and to distinguish between inappropriate behavior and unlawful harassment.
Key Elements
- Conduct must be unwelcome, meaning the victim did not solicit or incite it and regarded it as offensive.
- The harassing behavior can be verbal, physical, or both.
- Courts consider factors like frequency, hostility, the relationship between harasser and victim, and presence of others.
- A single extremely severe incident can sometimes meet the standard without pervasiveness.
Legal Standards in Context
Under Title IX and workplace law, the bar is conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies or limits equal access to opportunities or creates a hostile environment.
In sum, courts use an objective "reasonable person" standard focusing on unwelcome conduct that is either severe or pervasive enough to create a hostile or abusive environment legally recognized as sexual harassment.
