When a person accepts a job offer, the last thing on their mind (or the last thing that should be on it) is whether or not they will be sexually harassed at work.
Being concerned about other work-related issues, such as raises, promotions, and if they will eventually receive healthcare, are normal to stress over, but sexual harassment should never become part of that list of worries. If it does, then you may need to take legal action in order to protect yourself.
According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is a form of sex discrimination that involves unwelcome sexual advances, requests for sexual favors, and various other verbal or physical actions that are of a sexual nature, and are all considered to be illegal.
When sexual harassment occurs in a work setting, it is also considered to be a form of employment discrimination. The offensive conduct can take place either between a supervisor and an employee, or between two colleagues at the office.
In general, there are two main types of sexual harassment claims in the workplace. The first is known as “quid pro quo” sexual harassment, and the second is called “hostile work environment” sexual harassment.
Regardless of the relationship of the parties or how it is classified, persons of any gender can experience sexual harassment. It can happen between parties of the same sex or of a different sex as well. The key factor in identifying sexual harassment is the nature of the offending party or parties’ behavior.
What are Some of the Examples of Sexual Harassment in the Workplace?
As discussed above, 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.
What are Some 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.
How Can I File 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
Are There Any 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.
Do I Need an Attorney If I Am Dealing with Sexual Harassment?
If you have been involved in a sexual harassment incident in the workplace and you have exhausted all of the administrative remedies discussed above, including filing a complaint with the EEOC, then you should now 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.