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Harassment claims are brought under general antidiscrimination laws, such as Title VII of the Civil Rights Act, rather than under laws specifically addressing harassment. In sexual harassment cases, the plaintiff must show that he or she was subjected to harassment because of his or her sex. Both men and women are protected from harassment. In recent years, roughly 17 percent of sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) have been brought by males.

Regardless of their sex, to be successful in making a harassment claim, plaintiffs must show that they were “exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” In other words, someone of the opposite sex would not have been subjected to harassment or any such harassment would have differed markedly in nature. In other words, someone of the opposite sex would not have been subjected to harassment or any such harassment would have differed markedly in nature.

Establishing the discriminatory motivation behind harassment can be difficult. Consider same-sex harassment cases, in which the harasser and the person harassed are of the same sex. Although sexual attraction is not the only reason that employees are singled out for harassment, judges often have difficulty concluding that heterosexual harassers choose to harass people of the same sex because of their sex. The three methods offered by the Supreme Court for establishing that same-sex harassment is discriminatory are not exhaustive.

Some courts have also used the theory of sex stereotyping to find evidence of a discriminatory motive in same-sex harassment cases. In cases where both men and women are victimized, courts often conclude that the harassment does not disadvantage members of one sex relative to the other, so it is not discriminatory treatment based on sex. Questions about whether harassment was because of sex also arise when there is evidence of the harasser’s personal hostility toward the plaintiff.