What is the Difference Between Sexual Harassment and Sexual Assault? What About Sexual Misconduct?

The Difference Between Sexual Harassment, Misconduct, and Assault

As a result of the #MeToo movement, an increasing number of people are reporting sexual misconduct. However, what is the difference between sexual misconduct, sexual harassment, and sexual assault?  While there is a lot of overlap, the terms have different meanings, which are described in more detail below.

• Sexual misconduct is a broad catchall term for inappropriate sexual behavior. The term does not refer to a specific crime or civil claim.  Sexual misconduct includes any unwelcome behavior of a sexual nature that is committed without consent or by force, intimidation, coercion, or manipulation.  It is sometimes used to describe conduct that does not meet the specific legal definitions of sexual harassment or sexual assault. It can also be used as a broad category that encompasses illegal behavior.
• Sexual harassment is a form of gender/sex discrimination. The Minnesota Human Rights Act (“MHRA”) defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature when:

• 1. submission to that conduct or communication is made a term or condition, either explicitly or implicitly, of obtaining employment, public accommodations or public services, education, or housing;
  2. submission to or rejection of that conduct or communication by an individual is used as a factor in decisions affecting that individual’s employment, public accommodations or public services, education, or housing; or
  3. that conduct or communication has the purpose or effect of substantially interfering with an individual’s employment, public accommodations or public services, education, or housing, or creating an intimidating, hostile, or offensive employment, public accommodations, public services, educational, or housing environment.

Minn. Stat. § 363A.03, Subd. 43.  Under the MHRA, one of the ways sexual harassment discrimination may occur is when unwanted sexual advances, conduct, or communication create an intimidating or hostile environment substantially interfering with an individual’s employment.

In interpreting this provision, Minnesota courts have adopted the federal standard used to interpret certain federal discrimination claims that require the discriminatory harassment to be sufficiently “severe or pervasive” in order to be actionable.

• Sexual assault refers to a sex crime. The legal name for sexual assault is criminal sexual conduct.  Minnesota has five degrees or levels of criminal sexual conduct that vary based on unlawful sexual activity and the age of the victim.  Unlike sexual harassment, which can be based on verbal conduct, criminal sexual conduct requires either contact or lewd conduct in the presence of a minor under the age of 16, knowing or having reason to know the minor is present.

If you have any questions about sexual misconduct, assault, or harassment occurring in the workplace, contact our Minneapolis employment lawyers to discuss your employment situation.