Sexual Harassment at Work
The U.S. Equal Employment Opportunity Commission (EEOC) is a government agency that defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature that unreasonably interferes with the performance of a person's job or creates an intimidating, hostile, or offensive work environment.
Harassing behavior can range from persistent requests for sexual favors to sexual assault to posting offensive material on a bulletin board. This is employment discrimination and can happen to anyone regardless of gender identity, or sexual orientation.
State and federal laws offer protection 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 that may be more strict. Check the laws of your state for more information.
This article will outline types of workplace sexual harassment, employer liability, and strategies and procedures to end the behavior.
Types of Sexual Harassment
Under Title VII, there are two types of sexual harassment:
- Quid pro quo
- Hostile work environment
Under the quid pro quo form of harassment, a person in authority, usually a supervisor, creates unlawful conditions of employment. This person will demand that subordinates tolerate sexual harassment to get or keep a job or job benefit, including promotions and raises. A single instance of harassment is enough 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 pervasive enough to create an abusive or offensive working environment. Elements that 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 person or singled out the victim
In any sexual harassment case, the alleged victim must meet a subjective and objective standard. In other words, a plaintiff with a sexual harassment complaint must show:
- They subjectively believed the conduct was hostile, abusive, or offensive
- A reasonable person in the plaintiff's position would objectively believe the conduct was hostile, abusive, or offensive
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 a victim can prove either quid pro quo or hostile work environment harassment, employers may be liable for compensatory 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.
Employers can counter these claims if they can show that:
- The company exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware
- The employee unreasonably refused to take advantage of the corrective measures
Employers cannot retaliate against an employee for reporting sexual harassment. Retaliation can take several forms, often called "adverse employment actions." Examples of adverse employment decisions are firing, demoting, and negative changes in assignments or responsibilities.
Strategies to Stop Sexual Harassment
There are several levels of escalation to use to put an end to workplace sexual 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. 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 to know best how to handle 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 superiors took.
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. 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 alone, 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 inform them about the situation. Document that step and every step that you take after that. Digitally back up any files that contain records about the harassment.
Documentation continues after 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 well-being. 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 not allowed to retaliate 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 happen. Getting a copy of your personnel file before you file a complaint is wise. If you have this in hand, you'll have documentation of positive past work performance and evaluations if 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.
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. You can file a Title VII lawsuit only after the EEOC investigates and no settlement is forthcoming. State agencies may have different policies, so investigate those further. Make sure to file your claim before any federal or state statutes of limitations expire.
Victims of Sexual Harassment: Before Filing a Discrimination Complaint, Consider Legal Counsel
Are you still unsure of what the definition of sexual harassment is? Do you have a solid workplace discrimination case to file a claim? It can be challenging to make these determinations, but an experienced employment law attorney can help. Contact a lawyer familiar with fair employment practices and anti-discrimination laws for legal advice.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
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Contact a qualified employment discrimination attorney to make sure your rights are protected.