The U.S. Equal Opportunity Employment Commission (EEOC) defines workplace sexual harassment as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment. Sexual harassment can range from persistent offensive sexual jokes to inappropriate touching to posting offensive material on a bulletin board. Sexual harassment at work is a serious problem and can happen to both women and men.
Both state and federal laws protect employees 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 which may be even more strict. Check the laws of your state for more information.
This article will outline the two types of workplace sexual harassment, employer liability, and strategies and procedures to put an end to the behavior.
Types of Sexual Harassment
Under Title VII there are two recognized types of sexual harassment — 1) quid pro quo and 2) hostile work environment.
Under the quid pro quo form of harassment, a person in authority, usually a supervisor, demands that subordinates tolerate sexual harassment as a condition of getting or keeping a job or job benefit, including promotions and raises. A single instance of harassment is sufficient to sustain a quid pro quo claim (e.g., a superior demands you kiss her/him in order to keep your job), 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 severe or pervasive enough to create an abusive or offensive working environment. Elements which 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; and
- Whether the harassment was directed at more than one individual or singled out the victim.
In any sexual harassment case, the alleged victim will have to meet a subjective and objective standard. In other words, the plaintiff must show that:
- he/she subjectively believed the conduct was hostile, abusive, or offensive; and
- 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 governs — and most states have enacted laws covering such circumstances. If either quid pro quo or hostile work environment harassment can be proven, employers may be liable for compensatory (monetary loss, pain and suffering) and punitive damages. Liability may depend on who committed the harassment (superior or co-worker) and what action the company took to correct it.
If the harassment is committed by a superior and:
- There is tangible employment action (firing, demoting, negative changes in assignments or responsibilities), the employer is liable.
- The harassment is hostile work environment, then the employer is liable. The employer’s defense to liability is that it 1) exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware, and 2) the employee unreasonably refused to take advantage of the corrective measures.
If the harassment is committed by a coworker:
- the employer is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action.
Strategies to Stop the 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. There are several levels of escalation to employ in putting an end to workplace sexual harassment. First, you should personally try to end it. If that doesn’t work, look at your employee handbook or manual and see what policies the company has in place and take your complaint to that level. No matter what, you should document everything (each instance of harassment, what actions were take by superiors, etc.), as it will only add to the strength of your case.
Personally Inform the Harasser His Actions Are Offensive
While this is the most difficult act for victims of harassment, it is ultimately the most effective method of ending the behavior. The harasser may not even be aware that her/his behavior is offensive, and it is 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 her/him 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. You’ll want to document every action that’s taken by you, along with the response.
Human Resources and Supervisors
If there is no lessening of the harassment after personal appeals to stop, then escalate your complaint to the next level. Be sure to follow all company protocols dealing with sexual harassment (and 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, let them know about the situation, document it, and keep backups in files away somewhere safe away from the workplace.
Documentation does not end at keeping emails and memos to co-workers and supervisors. You should write down each instance of harassment as they happen. This includes specific information, in addition to date and time, such as the people involved, onlookers if any, their reactions, how the event made you feel and affected your work and general well being, etc. Keeping a journal of such events will strengthen your case and allow you to recall events clearly without worrying about forgetting or mis-remembering details.
Employer Retaliation is Illegal
Employers are prohibited from retaliating against employees who file complaints. While this may hold some comfort, employees know that in the real world retaliation in some form may occur. Therefore, it would be wise to get a copy of your personnel file before you file a complaint. If you have this in hand, you’ll have documentation of positive past work performance and evaluations in the event that 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 settle your claim) and prepare accordingly.
In order 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. Only after the EEOC investigates and no settlement is forthcoming can you file a Title VII lawsuit. State agencies may have different policies, so be sure to investigate those further. Make sure to file your claim before any federal or state statutes of limitation expire.
Before Filing a Harassment Claim, Consider Legal Counsel
A male coworker has made what sounds to you like a sexual innuendo, but you can’t be sure. However, this same individual has made similarly inappropriate comments toward women in the past. Is it harassment? And if so, do you have a strong enough case to file a claim? It’s not always so easy to make this determination, but an experienced employment law attorneycan help.