Is the Sexual Harassment of Employees under the age of 18 the same as Sexual Harassment of Adult Employees?
The law of sexual harassment is designed to apply to adult employees, but over five million employees in the U.S. are children. Children are more vulnerable to sexual harassment than adults. Children lack legal capacity, cannot “consent” in some situations, and are generally held to a lower standard of “reasonableness” than adults.
Solis v. S.V.Z. (Tex. App.—Houston [14th Dist.] 2018) Under Texas and Federal law, an alleged harasser’s conduct is not “harassment” unless it was “unwelcome” to the victim. In the case of an adult, welcomeness depends in part on whether the alleged victim invited the attention. If you agree to have sex with your boss or co-worker there is no sexual harassment. However, sexual harassment that includes statutory rape cannot be “welcome” by a girl or boy who is below the age of sexual consent.
In this case a supervisor committed statutory rape of a sixteen year-old employee. Under criminal law, consent is not a defense to a charge of statutory rape. The employer who was sued by the minor employee claimed that because she consented to the sex with her boss, she could not file a claim of sexual harassment. Under Texas law the jury is usually instructed that they cannot find for the employee if the jury finds that the employee consented to the sexual advances of the boss (or co-worker). It was undisputed that the sixteen year old girl did consent to sex, but the Judge stated that because she was not old enough to give her consent, consent was no defense against the employer civil liability for sexual harassment liability.
Under Texas Criminal Law, consent can be a defense if the victim and the defendant are within a certain difference in age. It is difficult to know if this would also be a defense for civil sexual harassment.
In El Paso, and New Mexico I find that there are many sixteen and seventeen years olds who work in restaurants and other service industries. It is difficult to control what happens in these businesses, but this case illustrates that an employer can be held liable if say a 21 year old supervisor has a sexual relationship with a 16 year old employee. In Texas the age of consent in Texas and New Mexico is 17, so presumably that age would allow for the defense of "consent" but that could be risky since the age of majority is 18. This case shows the danger in Employers not watching their supervisors of minors very carefully. There can, in some cases, be strict liablity to the employer who's supervisors have sex with minor employees.