Sexual harassment in the workplace falls into two broad categories:
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 verbal and physical;
- How frequently the conduct occurred or was repeated;
- Whether the conduct was patently offensive or hostile;
- Whether the alleged harasser was a co-worker or supervisor of the targeted employee or employees;
- Whether others joined the alleged harasser in perpetrating the harassment; and
- Whether the harassment was directed at more than one individual in the workplace.
A single incident of sexual harassment 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.
Employees are protected under both state and federal law against workplace sexual harassment. Federal law remedies for workplace discrimination and unlawful harassment are based upon Title VII of the Civil Rights Act of 1964 1, that applies to employers with fifteen or more employees. Employees who work for smaller employers are usually protected by similar state 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.
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.
Notice to the Employer
One important aspect of a sexual harassment case is that the employer must be aware of the problem, and have the opportunity to address the problem before it can be held liable. In most cases it is thus important for an employee who is being harassed by a co-worker or co-workers to bring the issue to the attention of the employer. Many employers have reporting procedures in place that an employee may follow. Sometimes the employer will have actual or constructive knowledge of a problem due to the nature of the conduct or the parties involved, and can have a duty to address the problem even without a specific report from an employee.
Physical Acts vs. Oral Statements
While sexual harassment often involves physical acts or and unwanted physical contact, based upon an evaluation of the totality of the circumstances, oral statements of themselves may constitute sexual harassment. 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.
Protections From Retaliation
Title VII protects employees who file sexual harassment charges, who participate in an investigation or litigation under associated with a sexual harassment complaint, or who testify in related proceedings, from being subjected to retaliation for those actions. State laws usually have similar provisions. It is possible for an employee to lose a sexual harassment claim, but still win a judgment against an employer on the basis of unlawful 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 complained of to be hostile, abusive or offensive.
The plaintiff in a sexual harassment case does not necessarily have to be a victim of the harassment in order to file a complaint against workplace sexual harassment.
Making an Administrative Complaint
Before a complainant can file a lawsuit based upon allegations of sexual harassment, ordinarily the complainant must first file a complaint about the conduct with an administrative agency. For a federal complaint, the complaint is first 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 employment opportunity agency will take the complainant's case, and prosecute the sexual harassment claim on behalf of the employee. If the agency does not act within a specific timeframe, or declines to act on the employee's behalf, it will issue a "right to sue" letter authorizing the employee to 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 unwelcome.
- 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 state equal employment opportunity agency. The victim will often benefit from consulting an attorney before contacting a government agency about the harassment.
It is sensible for a person who is experiencing sexual harassment to consult a plaintiff-side employment lawyer for a review of the facts. The lawyer can advise the employee on how to report the misconduct to the employer, how to collect and preserve evidence, with the preparation of an administrative complaint, and with any litigation that may occur at the end of that process.
In defending against a sexual harassment charge, an employer will typically 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.
- 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.