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Sexual Harassment Harassment

Sexual harassment includes unwanted or unwelcome behavior or remarks that are of a sexual nature. Sexual harassment can occur in many place, including the workplace and school.

Sexual harassment at work can take place in many ways, including:

  • Unwanted sexual advances;
  • Requests for sexual favors;
  • Verbal or physical harassment of a sexual nature; or
  • Offensive remarks about an individual's sex.

Remarks do not have to be sexual in nature to be considered sexual harassment. The remark must only be an offensive comment regarding the individual's sex. Sexual harassment may be committed by almost any individual, including:

  • Supervisors;
  • Co-workers;
  • Individuals in the same company but in a different department; or
  • Clients or customers.

Any individual of any gender can be a perpetrator of sexual harassment. Also, any individual of any gender can be a victim of sexual harassment. Sexual harassment can even take place between parties of the same sex.

There are two main types of sexual harassment. These are quid pro quo harassment and the creation of a hostile work environment. The meaning of quid pro quo in Latin is “this for that.” In a quid pro quo sexual harassment situation, an employee is asked to engage in a sexual act in return for some benefit, such as a raise, promotion, or other benfit. This type of harassment can also include an agreement not to take negative action against an employee.

Quid pro quo sexual harassment can be explicit or implicit. The harassing conduct or words are not required to be explained in detail in order to be considered sexual harassment.

The second type of workplace sexual harassment is a hostile work environment. When determining if a hostile work environment exists, the entirety of the circumstances must be considered. The circumstances may include:

  • How frequently the conduct occurred;
  • How severe the conduct was;
  • If conduct was physically threatening or humiliating; and
  • Whether or not the conduct unreasonably interfered with the individual's ability to do their job.

A hostile work environment can include a single comment if it occurs in conjunction with multiple physical acts or threats. The individual factors of each case will determine whether or not sexual harassment rises to the level of a hostile work environment. A large number of states have regulations and statutes that forbid sexual harassment in the workplace. These are in addition to existing federal protections.

In the educational realm, the sexual harassment limits or denies a student's right to educational benefits or the ability to participate in an educational activity or program in a supportive and safe environment.

Pursuant to state and federal laws, sexual harassment is illegal in an educational setting. Sexual harassment in schools often involves, but is not limited to, a teacher-student relationship or a student-student relationship. Sexual harassment may also occur in the following types of relationships:

  • Administrator-student;
  • Administrator-teacher; or
  • Teacher-teacher.

Examples of Sexual Harassment in the Workplace

There are two primary types of sexual harassment claims that can occur in a work setting.

One example of a situation, which falls under the first category of “quid pro quo” sexual harassment, would be when a supervisor (or an employee of higher rank) asks a lower-ranked employee to do some sort of sexual favor for them. In exchange for this favor, the supervisor will promise the employee some kind of work benefit or perk, such as receiving extra pay or getting a promotion.

Another example, which demonstrates the second category of “hostile work environment” sexual harassment, would be when someone working at the business continues to make threats or repeated sexual advances towards another employee and makes them so uncomfortable that it impacts their work performance or attendance.

The main difference between these two categories of workplace sexual harassment is that quid pro quo must involve a higher-ranking employee than the person who is being harassed, while the hostile work environment type is focused more on the offensive conduct rather than who is doing it. In some cases, the victim may even experience both at the same time.

There is also one other category that could be considered workplace sexual harassment and it is known as “non-direct” sexual harassment. This can happen in either of the above scenarios, but it occurs against another person who is not the originally intended victim.

For instance, if a bystander witnesses their co-worker being sexually harassed or is also offended by constantly overhearing dirty remarks or jokes, then that person may have a claim for “non-direct” sexual harassment. In certain instances, it might qualify as “direct” sexual harassment instead, depending on the circumstances of the case.

Am I the Victim of Sexual Harassment in the Workplace?

There is no bright line that separates behavior constituting sexual harassment from behavior that does not constitute sexual harassment. The following types of harassment can constitute sexual harassment:

  • The behavior is undesired.
  • The behavior makes the victim feel intimidated or threatened.
  • The behavior is severe (has a high intensity).
  • The behavior is pervasive (it pervades the workplace). Pervasive behavior is not limited to the workplace. It can spread beyond the workplace. Sexual harassment and can occur through offensive or unwelcome telephone calls or text messages sent to the victim during “off-hours.” Harassment is also considered pervasive when it continues even after a victim complains (to the harasser or to a supervisor or human resources).
  • The behavior affects an employee's ability to perform his or her job. Examples include If harassment results in a “falling off” in job performance, or forces an individual to come in early or late or take time off to avoid being in the harasser's presence. More extreme examples include if, due to the harassment, an employee must seek medical attention, suffers physically, or refuses opportunities for advancement. If, due to the harassment, an employee ‘s work performance declines severely enough to result in termination or demotion, the harassment may be deemed to be sexual harassment.

No one of the above factors “proves” sexual harassment. In general, the more severe, frequent, pervasive, or unwelcome the harassment, the more likely a judge would find the harassment to be sexual harassment. A lawyer for sexual harassment at work, also called a workplace sexual harassment attorney, can review the facts of your case to determine if you may have been the victim of illegal conduct. 

What Conduct is not Considered Sexual Harassment?

There are examples of conduct that do not rise to the level of sexual harassment. This may include simple teasing comments, offhand comments, or non-serious, isolated incidents. For example, one comment about a co-worker's nice outfit would not be considered sexual harassment.

The context and manner in which the behavior occurred determines whether or not conduct constitutes sexual harassment. Politely requesting a date from a co-worker would not constitute sexual harassment. However, repeatedly requesting a date from a co-worker who has already rejected the invitation may constitute sexual harassment.

Consensual conduct does not constitute sexual harassment. If to employees are involved in a romantic relationship, their conduct would not be considered sexual harassment. However, depending on the circumstances, it may violate workplace policies or create a hostile work environment for other employees. 

Laws that Protect Employees from Sexual Harassment in the Workplace

Along with many other types of discrimination that occur in the workplace, the EEOC is also responsible for enforcing any federal law that relates to sexual discrimination and harassment.

As an example, a federal law known as, Title VII of the Civil Rights Act of 1964 (“Title VII), is just one of the main federal laws that protects individuals from employment discrimination, including sexual harassment. The EEOC helps to ensure that employers follow the standards set out in Title VII and will hold them accountable if a claim has been filed.

However, it is important to note that Title VII only applies to employment agencies, unions, and companies that have 15 or more employees. Therefore, if the business does not meet one of these criteria, then a victim will have to look towards state laws or company policies for protection.

Every state has some version of a statute in place that prohibits sexual harassment conduct in the workplace. Some states have statutes that explicitly state that it is illegal, while others have it listed as a category under their discrimination laws.

Also, in response to the #MeToo era, some states (e.g., Connecticut, Hawaii, Florida) have recently started drafting legislation to prevent non-disclosure agreements (“NDAs”) from protecting employers who are in violation of sexual harassment laws.

Another place that employees can look to for help are company policies. When there does not seem to be a federal or state law directly on point with a claim, the employee should review their employment contract, an employment handbook, or an employer's company policies.

While sexual harassment conduct in the workplace has always been illegal and employers should have always abided by the relevant laws, the #MeToo movement contributed to shining a brighter light on sexual harassment offenses. Thus, it has become a staple of good business practice to include explicit rules in company documents that prohibit such behavior.

Filing a Sexual Harassment Complaint

There are several ways for an employee to file a sexual harassment complaint. Before filing though, the employee should speak with their offender directly if they feel safe doing so.

Sometimes a person may not know when their behavior has offended someone and later on if they do not comply with a request to stop, then it can be used as evidence to show they were on notice that their actions made the victim uncomfortable.

Prior to filing, the victim should also collect and document any incidents of the harassment. They can do this by recording the event, finding a third party who witnessed or experienced it themselves, and informing their supervisor. If the behavior still does not stop, then the next step is to file a report with their human resources department.

If there is no one else to speak to at the company or the complaint to human resources was ineffective, then the victim can file a complaint with a government agency, such as the EEOC. The EEOC will then open up an investigation into the company and can hold the employer responsible. Remedies could include forcing the employer to change their company policies.

It is only after all of these steps have been taken that the victim may file a lawsuit. In other words, a complaint must be filed with the EEOC before a person will be permitted to sue. If the victim has already reached this step, then they should contact an employment lawyer immediately for further advice on how to proceed with their claim. Each state may have slightly different processes and requirements for filing a claim. For instance, California sexual harassment claims may follow different procedures than those in other states.

What Can Victims of Sexual Harassment Recover?

A victim of sexual harassment is generally entitled to all available remedies and damages under tort law, or personal injury law. The primary damages that a victim of sexual harassment may recover include:

  • Equitable relief, which may include a remedy to help the individual recover from the harassment and may include things such as job reinstatement;
  • Compensatory damages, which include monetary compensation for the loss of employment, lost wages, and medical or other expenses related to the harassment; or
  • Punitive damages, which are damages that are intended to punish the employer for conduct that is particularly egregious, outrageous, malicious, or otherwise shocking behavior and deter future similar behavior.

Damages are calculated on a case-by-case basis. The value of a claim will depend on the facts of the individual's case.

It is important for a victim of sexual harassment to keep evidence of the harassment. There are cases in which the harasser may not be aware or understand that their behavior is offensive. If possible, the victim should begin by informing the harasser their actions are inappropriate and unwelcome. This, of course, if not required.

A victim of sexual harassment can strengthen their case by:

  • Documenting any and all instances of sexual harassment, including:
    • Dates, times and the nature of any instances of sexual harassment that occurred;
    • If there were any witnesses who observed the sexual harassment;
  • Informing a supervisor, a manager, or the human resources department (HR) at their employer; and
  • Filing a claim with the HR department If the sexual harassment persists;
  • Filing a claim with the EEOC if the HR department is unable to resolve the issue; and
  • Filing a civil lawsuit if the EEOC provides a Right to Sue letter.

Can I Sue My Employer If I'm the Victim of Sexual Harassment in the Workplace?

When the employer completes the investigation, the employer makes a conclusion as to whether the harassment did or did not occur. Regardless of what conclusion the employee reaches, the law permits individuals to file complaints of sexual harassment, with either the government, or, as part of a lawsuit, or both.

In some states, before a victim can file a lawsuit for sexual harassment in civil court, the person must first file a complaint with a government agency. This agency can be either a state agency, such as a state commission on reemployment discrimination, or the federal Equal Employment Opportunity Commission (EEOC). Some states permit simultaneous filing of a claim with both agencies.

Once an agency receives a complaint, it will investigate the allegations. If the agency or the EEOC issues a “Finding of No Cause” letter, the agency has concluded that harassment did not occur. If the agency or the EEOC issues a “probable cause” determination letter, the agency has concluded there is good reason to believe sexual harassment has occurred. Once the agency or agencies have issued their letter or letters, an individual (regardless of what the letter concluded) may then file a sexual harassment lawsuit against the employer. 

Does the Victim Recover From the Harasser or the Employer?

In most cases, in a workplace, a victim will recover from their employer. Even though the harasser is directly responsible for the victim's injuries, their employer is required to be in control of the workplace. One the employer is aware, they should attempt to stop the harassment.

In cases where the harasser is outside the employer's control, such as a customer or a client or an employee from another company, it may be more difficult to prove an employer is liable. However, a victim may still be able to recover from their employer for permitting a hostile work environment to exist.

Can the Victim Sue the Harasser?

A victim cannot sue any individual other than their employer for workplace sex harassment. One exception may include a case where the harasser is the owner or supervisor who represents the owner.

If an individual's employer knows the sexual harassment is occurring, and ignores the issue or does not take appropriate preventative action, there will likely be consequences. A victim in these cases may charge an employer by filing a claim with the Equal Employment Opportunity Commission (EEOC).

A complaint with the EEOC may result in an order from the agency requiring the employer to change their policies. It may also result in a civil lawsuit against the employer. If the harassment is severe or occurs outside of the workplace, the victim can sue the harasser for criminal harassment.

Defenses for Claims of Sexual Harassment

There are several defenses available that a defendant might be able to assert against a claim for sexual harassment. Not all of them will necessarily dismiss the case, but many of them can be used to at least reduce the penalties received.

Although most state statutes will provide their own version of the defenses available for sexual harassment in the workplace claims, the following are some of the more common ones that come up during these cases:

  • The defendant can provide evidence showing that the victim's claims are false;
  • A defendant can also argue that the conduct did not rise to the standard of sexual harassment specified under the law;
  • If the victim did not go through the proper administrative route of filing with the EEOC, etc., then they can use that as a defense as well;
  • If the EEOC failed to find anything during their investigation (e.g., repeated patterns of conduct), then their report may be used as evidence against the claim; or
  • If the defendant is not in fact the person responsible for the sexual harassment behavior that took place, then they can show that someone else was the actual cause of it.

Finally, it would not be in the employer's best interest to retaliate against that employee. Instead, a better move would be to cooperate with any investigations and admit any wrongdoings.

Also, while it may seem counterintuitive to apologize for misconduct, sometimes an apology can go a long way with the victim, especially if the offender or employer explains how they will do better or improve their policies going forward.

How Can an Attorney Help Me If I Am Dealing with Sexual Harassment?

If you believe you have been the victim of workplace sexual harassment, you should contact a workplace sexual harassment lawyer. An experienced sexual harassment lawyer near you can review the facts of your case, advise you how to proceed, and represent you in agency and court proceedings. If you have been involved in a sexual harassment incident in the workplace and you have exhausted all of the administrative remedies, including filing a complaint with the EEOC, then you should contact a local employment lawyer or sexual harassment attorney for further assistance. Again, you must complete the first steps before you will be allowed to sue. Thus, if you have not, then a lawyer might advise you to do the same before they can start discussing how to build your case.

Alternatively, if you are an employer being sued for sexual harassment, you should speak to an employment lawyer immediately. They will be able to guide you through what can happen during and after the EEOC investigation, as well as how to take the next steps for defending yourself against your accuser.

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