Employees are protected under both state and federal law against workplace sexual harassment. Federal law remedies for workplace discrimination are based upon Title VII of the Civil Rights Act of 1964 [FN1], which applies to employers with fifteen or more employees. People who work for smaller employers are usually protected by similar state anti-discrimination laws. Under federal law, same-sex sexual harassment can support a claim against an employer. State laws may vary on the issue of same-sex harassment.
There are two general categories of sexual harassment in the workplace:
Quid Pro Quo Harassment - An employee is required to tolerate sexual harassment in order to obtain or keep a job, job benefit, raise, or promotion.
Hostile Work Environment Harassment - Harassment at work unreasonably interferes with or alters the employee's work performance, or creates a hostile, abusive or offensive work environment. In determining if a workplace environment is "hostile", the following factors are typically examined:
- Whether the conduct was verbal, physical, or both;
- How frequently the conduct was repeated;
- 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; and
- Whether the harassment was directed at more than one individual
A single incident may be sufficient to establish a "quid pro quo" harassment claim, but typically a pattern of conduct is required to establish a hostile work environment. Conduct that may give rise to a sexual harassment claim includes unwelcome sexual advances, requests for sexual favors, and other oral (spoken) or physical conduct of a sexual nature. Depending upon the circumstances, an employer may be liable for conduct of non-employees over whom it exercises some level of control, where it doesn't take appropriate corrective action to end sexually harassing conduct.
Oral statements may also constitute sexual harassment, based upon an evaluation of the totality of the circumstances. Relevant factors include:
- The nature, frequency, context, and intended target of the remarks;
- Whether the remarks were hostile and derogatory;
- Whether the alleged harasser singled out the complaining party;
- Whether the complaining party participated in the exchange; and
- The relationship between the complaining party and the alleged harasser.
Title VII also protects employees who file sexual harassment charges, who participating in an investigation or litigation under associated with a sexual harassment complaint, or who testifying in related proceedings. State laws typically have similar provisions. It is possible for a complainant to lose a sexual harassment claim, but still win a judgment against an employer on the basis of retaliation.
To support a complaint of sexual harassment, the plaintiff must establish that:
- The plaintiff found the conduct to be hostile, abusive or offensive; and
- A reasonable person in the position of the plaintiff would consider the conduct hostile, abusive or offensive.
Please note that the plaintiff does not necessarily have to be a victim of the harassment in order to file a complaint against workplace sexual harassment.
Ordinarily before a complainant can file a suit based upon sexual harassment, the complainant must first file a complaint about the conduct with an administrative agency. For a federal complaint, the complaint would first be filed with the Equal Employment Opportunity Commission (EEOC). There are also state and local agencies, to which complaints may be made under state law. Sometimes the agency will take your case, and prosecute your discrimiantion on your behalf. If the agency does not act within a specific timeframe, or declines to act on your behalf, you may file a private lawsuit.
If a person feels that he or she is the subject of sexual harassment:
- The victim should inform the harasser that the conduct is unwelcome and must stop, either through words or through conduct which demonstrates that the harassment is unwelcome. This is necessary to ensure that the person is not operating under the mistaken belief that the conduct at issue is not unwlecome.
- The victim should also use any employer complaint mechanism or grievance system available.
- If these methods are ineffective, the victim should contact the EEOC or a similar state agency. The victim may benefit from consulting an attorney before contacting a government agency about the harassment.
Typically, in defending against a sexual harassment charge, an employer will attempt to establish:
- That it took reasonable measures to prevent and correct any sexual harassment behavior within the workplace; and
- That the employee unreasonably failed to take advantage of any preventive or corrective opportunities that the employer provided.
Notice: Please note that this is only an introduction to sexual harassment law. If you believe yourself to be a victim of sexual harassment, please consult with an attorney to have your claim fully evaluated.
- Under Title VII, employers may not intentionally use race, skin color, age, gender, religious beliefs, or national origin as the basis for decisions relating to almost any aspect of the employment relationship, including hiring, promotions, dismissals, raises, employee benefits, leaves of absense, or assignment of work.