Sexually harassing behavior may include conduct of a sexual nature and conduct which is merely based on the sex of the victim.

Conduct of a Sexual Nature

The most commonly reported form of sexual harassment is "conduct of a sexual nature." This term is generally thought to mean actions, language or visual materials which specifically refer to, portray or involve sexual activity or language. Conduct of a sexual nature may include overt sexual solicitations, inappropriate touching, sexual jokes and inquiries about a person's sex life.

Sexual harassment involving conduct of a sexual nature is the subject of most sexual harassment laws. It is actionable in the United States, Canada, Australia, many Member States of the European Union, Japan and many other countries in Europe, Africa, Asia and South America.

Conduct Based on Sex

Sex-based harassment is more difficult to describe. It is conduct that occurs because of the sex of the intended victim but is not necessarily sexual in nature. Examples of this kind of behavior are an offensive joke that does not refer to sex, but the joke is told to embarrass a person because she is a woman, a statement that a female employee belongs at home or is not suited for a particular job because she is a woman and conduct referring to pregnancy, childbirth or related medical conditions.

Sex-based harassment, i.e. harassment not involving sexual activity or language, is or will soon be actionable in, among other countries, the United States and Member States of the European Union. In the United States, this form of sexual harassment is actionable under Title VII if it is "sufficiently patterned or pervasive" and directed at employees because of their sex. From EEOC Policy Guidance on Current Issues of Sexual Harassment (1990) (citing Hicks v. Gates Rubber Co., 833 F. 2d 1406, 1416; McKinney v. Dole, 765 F. 2d 1129, 1138 (D.C.Cir. 1985)).

In the European Union, Member States must comply with a new directive adopted in 2002 by the Parliament and Council which mandates that Member States implement legislation that outlaws harassment based on sex because such behavior is a form of sex discrimination in violation of the equal treatment principle under EU law. Under the directive, harassment based on sex is defined as follows:

[harassment occurs] where an unwanted conduct related to the sex of a person occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

The new directive follows much of the guidance contained in the 1992 EU Code of Practice on Measures to Combat Sexual Harassment. This code states that, "sexual harassment is sex discrimination because the gender of the recipient is the determining factor in who is harassed. " From Directive 2002/73/EC of the European Parliament and of the Council of 23 Sept. 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. (PDF, 6 pages); EU Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, 1992 O.J. (L49) 1. In many countries, the conduct need not be sexual in nature for it to be considered illegal, i.e. “mistreatment aimed only at women, such as inaccurate criticisms of job performance, obstruction, etc.” International Labor Organization, Sexual harassment at work: National and International Responses 20 (2005).