Sexual harassment in the workplace is a situation where all parties lose. The employee feels threatened and powerless while the employer often loses a productive employee and the overall morale of the workforce is usually adversely affected.
What is sexual harassment?
Sexual harassment is unwanted and repeated sexual attention at work. Some examples of sexual harassment are subjecting an employee to offensive unwelcomed touching or other forms of physical contact, unwelcomed sexual innuendo and jokes, unwelcomed sexual advances, suggestive comments about an employee's appearance, and a work environment that contains sexually explicit materials
What is "hostile work environment" sexual harassment and "quid pro quo" harassment?
Sexual harassment is divided into two forms. Often the forms mingle and overlap in the workplace.
- Hostile work environment is when the conduct in question is unwelcome, based on sex, and severe or pervasive enough to alter the conditions of the employee's employment and create an abusive working environment. Typically these are situations where sexual innuendo is used in discussions between employees, where off-color, sexually oriented jokes are told, or where offensive visual material of a sexual nature is displayed openly.
A court will look at all the circumstances of the situation in attempting to determine what is offensive to an employee. The court will look to the frequency of the offensive conduct, the severity of the conduct, whether the conduct is physically threatening or humiliating or merely offensive, and whether it unreasonably interferes with the employee's work performance.
- Quid pro quo sexual harassment is when an individual who holds a superior position to another employee links that employee's terms of employment with positive responses to the superior's sexual advances, requests for sexual favors or other forms of physical or verbal conduct of a sexual nature.
Both quid pro quo and hostile work environment theories of sexual harassment arise from the legal authority of the Civil Rights Act of 1964, which made it illegal to discriminate on the basis of race, color, religion, national origin or sex. Title VII of the Act prohibits employers from discriminating on the basis of sex with respect to compensation, terms, conditions or privileges of employment. The prohibition against sex discrimination has been extended to create the area known as sexual harassment.
What types of damages are available to a victim of sexual harassment?
Title VII of the Civil Rights Act of 1964 was amended in 1991. Under this amendment, sexual harassment victims can recover back pay, future monetary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life and other non-monetary types of loss. A victim can also collect punitive damages if he or she can prove the employer acted with malice or with reckless or callous indifference to their circumstance.
When the 1991 amendment was made to the Civil Rights Act of 1964, limits were placed on the amounts of compensatory and punitive damages a victim could receive. Those limits are proportionate to the number of people a company employs. Those limits are:
- $50,000 for employers with 15-100 employees;
- $100,000 for employers with 101-200 employees;
- $200,000 for employers with 201-500 employees; and
- $300,000 for employers with more than 500 employees.
In addition to federal law remedies for sex discrimination, state law claims may also be available to the victim of the sexual harassment. These could include battery, assault, outrage, wrongful termination, negligent retention and hiring and a host of other potential claims. It is best to consult with an attorney in your state to determine what state claims may be available in this context. An attorney in your state will also determine what statute of limitations exists as to those potential claims. The statute of limitations is a law that dictates the period of time during which a claim must be brought or a party will forever lose the right to pursue that claim.
Your local attorney can also determine whether or not your particular state has its own civil rights legislation that provides for damages above and beyond what the federal law provides
Can only women be considered victims of sexual harassment?
In most instances women are the victims in sexual harassment cases. But that does not mean that the law is limited by gender. Sexual harassment can occur between employees of the same sex or by a female if she is in a management position and exercises the authority of her position to coerce a subordinate to accept her unwanted sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.
What should employees do if they believe they are victims of sexual harassment?
As in any situation, it's always best to try and work matters out in an informal, non-adversarial way. Bringing concerns to the attention of the human resources officer or personnel director can often get issues of this nature resolved. Often, businesses have 800 numbers or other reporting mechanisms in place for employees to report conduct that they believe is sexual harassment.
If the situation cannot be resolved by an informal discussion between the employee and the employer, the employee should then contact the Equal Employment Opportunity Commission
What is the Equal Employment Opportunity Commission?
The Equal Employment Opportunity Commission, or the EEOC, is a federal administrative agency that investigates and sometimes prosecutes claims of discrimination. The employee should contact the EEOC within 180 days of the last known discriminatory act so that the charge of discrimination can be timely made. If a charge of discrimination is filed after 180 days, an employee may lose the opportunity to pursue any claim against the employer. This is not true, though, if the state where the claim is made has a work share agreement with the EEOC.
In those instances, a state agency which undertakes the same kinds of investigations into claims of discrimination as the EEOC may be able to extend the filing date 180 days. In order to ensure that a charge of discrimination is timely made, it is best to immediately contact an attorney. He or she can properly apprise you of what the filing requirements are for a sexual harassment claim in your state.
What if I want to file a lawsuit in federal court? Can I do that instead of filing a charge of discrimination with the EEOC?
For claims under Title VII, you must file with the EEOC first. If the EEOC has not conducted an investigation or rendered a probable cause finding to determine if there has been discrimination, a party can request a right-to-sue letter and, within 90 days of receipt of that letter, the party can file suit in United States District Court.
The requirements for filing with the EEOC before one can proceed into federal court, and the various state claims that might be brought with a federal claim and their differing statutes of limitations, can present a complex legal situation for a plaintiff. It is always best to find an attorney who can properly apprise you of what claims may be available as well as what statutes of limitations or time limits exist for making those claims.