Sexual Harassment at Work

The U.S. Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interfere with the performance of a person's job or create an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Sexual harassment at work is a serious problem and can happen to anyone regardless of gender identity.

Both state and federal laws protect employees from sexual harassment at work. Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. While Title VII is the base level for sexual harassment claims, states have sexual harassment laws which may be even more strict. Check the laws of your state for more information.

This article will outline the two types of workplace sexual harassment, employer liability, and strategies and procedures to put an end to the behavior.

Types of Sexual Harassment

Under Title VII, there are two types of sexual harassment: 1) quid pro quo, and 2) hostile work environment.

Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of getting or keeping a job or job benefit, including promotions and raises. A single instance of harassment is sufficient to sustain a quid pro quo claim, while a pattern of harassment is typically required to qualify as a hostile work environment.

Hostile work environment harassment is grounds for legal action when the conduct is unwelcome, based on sex, and severe or pervasive enough to create an abusive or offensive working environment. Elements which courts analyze in determining whether a hostile environment harassment claim is valid include:

• Whether the conduct was verbal, physical, or both
• Frequency of the conduct
• Whether the conduct was hostile or patently offensive
• Whether the alleged harasser was a co-worker or supervisor
• Whether others joined in perpetrating the harassment
• Whether the harassment was directed at more than one individual or singled out the victim

In any sexual harassment case, the alleged victim will have to meet a subjective and objective standard. In other words, the plaintiff must show that:

• They subjectively believed the conduct was hostile, abusive, or offensive, and
• A reasonable person in the plaintiff's position would objectively believe the conduct was hostile, abusive, or offensive

Employer Liability

Only employers with 15 or more employees are subject to Title VII. For companies with fewer than 15 employees, state law dictates issues of sexual harassment. Most states have enacted laws addressing such harassment in companies of this size. If either quid pro quo or hostile work environment harassment can be proven, employers may be liable for compensatory (such as monetary loss and pain and suffering) and punitive damages. Liability may depend on who committed the harassment (such as a superior or co-worker) and what action the company took to correct it.

If the harassment is committed by a superior and:

• There is tangible employment action, the employer is liable. Examples of employment actions are firing, demoting, and negative changes in assignments or responsibilities.
• The harassment is hostile work environment, the employer is liable. The employer's defense to liability is that it: 1) exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware, and 2) the employee unreasonably refused to take advantage of the corrective measures.

If the harassment is committed by a coworker:

• The employer is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action.

Strategies to Stop the Harassment

With the above legal standards for sexual harassment at work in mind, victims of harassment also bear the burden of attempting to end it. There are several levels of escalation to employ in putting an end to workplace sexual harassment. First, you should personally try to end it. If that doesn't work, look at your employee handbook or manual. Read about your company's policies, so that you know best how to approach handling your concern with human resources or any other person or body to whom you should report offensive conduct. No matter what, you should document everything, as it will only add to the strength of your case. Keep notes on each instance of harassment and what actions were taken by superiors, for example.

Tell the Harasser to Stop

While this is the most difficult act for victims of harassment, it's ultimately the most effective method of ending the behavior. The harasser may not even be aware that their behavior is offensive, and it's always best to "nip it in the bud" before inappropriate comments or jokes, left unchecked, turn into something uglier.

If you are uncomfortable facing the harasser, write a short letter or email letting them know you want the behavior to stop. If you're uncomfortable doing this, tell a supervisor. If you write a letter, make a copy. If you write an email, send it from a company email address. You'll want to document every action you take, along with the response.

Human Resources and Supervisors

If the harassment does not stop after you've tried to handle it on your own, escalate your complaint to the next level. Be sure to follow all company protocols for dealing with sexual harassment. Document everything to show that you took every action the company recommended. At each step, if you don't get the proper response from management, continue escalating the complaint up the chain of command.

Write It Down

The reason for following company procedures and documenting everything is simple: if you don't follow company procedures and give them a chance to stop the harassment, you will likely lose in court. So, complain within the company first, and let them know about the situation. Document that step and every step that you take after that. Digitally back up any files that contain records concerning the harassment.

Documentation does not end at keeping emails and memos to co-workers and supervisors. You should write down each instance of harassment. Examples of relevant information include, but are not limited to, dates and times, the people involved, possible witnesses, their reactions, and how the event made you feel and affected your work and general wellbeing. Keeping a journal of such events will strengthen your case. It will help in your recollection of the events.

Employer Retaliation Is Illegal

Employers are prohibited from retaliating against employees who file complaints. While this may make employees feel more secure, workers know that, in the real world, retaliation in some form may still occur. Therefore, it would be wise to get a copy of your personnel file before you file a complaint. If you have this in hand, you'll have documentation of positive past work performance and evaluations in the event that the company retaliates by demoting or transferring you while claiming you have a poor track record. In these litigious days, the wisest move is to expect the worst (a lawsuit to resolve your claim) and prepare accordingly.

Government Intervention

In order to file a civil lawsuit under Title VII, you will first have to send your complaint to the EEOC, the federal agency that enforces Title VII. Only after the EEOC investigates and no settlement is forthcoming can you file a Title VII lawsuit. State agencies may have different policies, so be sure to investigate those further. Make sure to file your claim before any federal or state statutes of limitations expire.

Before Filing a Harassment Claim, Consider Legal Counsel

A coworker has made what sounds to you like a sexual innuendo, but you can't be sure. However, this same individual has made similarly inappropriate comments toward people in the past. Is it harassment? And if so, do you have a strong enough case to file a claim? It's not always so easy to make this determination, but an experienced employment law attorney can help.