According to the Equal Employment Opportunity Commission (“EEOC”), sexual harassment involves unwelcome sexual advances, requests for sexual favors, and various other verbal and/or physical actions that are of a sexual nature. All of these are considered to be illegal. Additionally, sexual harassment may refer to any offensive comments or remarks that are made about a person’s gender. However, this is more commonly associated with gender discrimination.
When sexual harassment occurs in the workplace, it is also considered to be a form of employment discrimination. The offensive conduct may occur between a supervisor and an employee, or between two colleagues at the office. Generally speaking, the two main types of sexual harassment claims in the workplace are “quid pro quo” sexual harassment, and “hostile work environment” sexual harassment.
An example 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.
An example of hostile work environment sexual harassment would be when someone continues to make threats or repeated sexual advances towards another employee, and makes them so uncomfortable that it impacts their work performance and/or attendance.
The defining difference between these two categories of workplace sexual harassment would be that quid pro quo must involve a higher-ranking employee than the person who is being harassed, while the hostile work environment type is associated with the offensive conduct rather than who is doing the offensive conduct. In some cases, the victim could experience both simultaneously.
Another category that could be considered workplace sexual harassment would be “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. An example of this would be if a bystander witnesses their co-worker being sexually harassed, or is also offended by constantly overhearing dirty remarks or “jokes.” That person may have a claim for non-direct sexual harassment. Depending on the circumstance, it could qualify as “direct” sexual harassment instead.
Regardless of the relationship between the parties or how the harassment is classified, people of any gender can experience sexual harassment. The determining factor when identifying sexual harassment is the nature of the offending party or parties’ behavior.
What Are Some Examples Of What Would Not Constitute Sexual Harassment In The Workplace?
In terms of a sexual harassment claim, teasing, offhand comments, and/or non-serious isolated incidents would not generally be considered sufficient basis. An example of this such as an offhand comment of “you look nice today” would not generally be considered sexual harassment.
Sexual harassment can also be determined by the context and manner in which the action is conducted. An example of this would be how asking a coworker on a date once in a polite manner would not constitute sexual harassment, although it could be considered unprofessional. However, repeatedly asking a coworker for a date even after they resufse may constitute sexual harassment.
Consensual conduct would also not be considered sexual harassment. An example of this would be how if two colleagues are involved in a romantic relationship, they may engage in consensual sexual activity. That sexual activity would not be considered sexual harassment, even if they broke up later, because it was consensual at the time it occurred. However, engaging in consensual sexual activity in the workplace could violate other work policies, and create a hostile work environment for other employees.
What Are Some Laws In Place Protecting Employees From Workplace Sexual Harassment?
To reiterate, the EEOC is responsible for enforcing any federal law associated with sexual discrimination and harassment. An example of this would be how the federal law Title VII of the Civil Rights Act of 1964 (“Title VII) protects individuals from employment discrimination, which includes sexual harassment. The EEOC ensures 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. As such, if the business does not meet one of these criteria, victims must rely on state laws or company policies for protection.
Every state has a statute prohibiting sexual harassment conduct in the workplace. Some statutesexplicitly state that it is illegal, while others list it as a category under their discrimination laws.
In response to the #MeToo era, some states such as Connecticut, Hawaii, Florida have recently drafted legislation intended to prevent non-disclosure agreements from protecting employers who are in violation of sexual harassment laws.
When there is not a federal or state law directly associated with a specific claim, the employee should review:
- Their employment contract;
- An employment handbook; and/or
- An employer’s company policies.
What Should Employers Do To Prevent Workplace Sexual Harassment?
Employers have a responsibility to maintain an atmosphere in which sexual harassment is never tolerated, and is actively discouraged. Employers can promote a sexual harassment-free atmosphere by adopting a sexual harassment policy, as well as a policy for processing sexual harassment complaints. All employees must be notified of these sexual harassment policies and how they should go about filing a complaint.
Additionally, employers should provide company supervisors with training on preventing sexual harassment in the workplace. Some employers also discourage or forbid intra-office relationships, although this does not always reduce the likelihood of sexual harassment as many harassers do not harass in an effort to pursue a relationship.
If possible and safe, the victim should put the harasser on notice that the victim finds their actions and/or words offensive. If speaking with the harasser proves to be ineffectual, or it is unsafe to do so, the victim should:
- Document all instances of sexual harassment, including the date, time and nature of the sexual harassment that occurred;
- Take a statement from any witnesses who witnessed the sexual harassment;
- Inform a supervisor, manager, and/or HR; and
- If the sexual harassment persists, file a claim with HR.
If filing a claim with HR does not resolve the issue, you will need to file a claim with a government agency. An example of this would be how you can file a sexual harassment claim with the Equal Employment Opportunity Commission EEOC, who will investigate the claim and initiate an action with the claimant’s employer. In the case of the EEOC, they will inform the claimant’s employer that the claimant has initiated an action.
Because most state laws require claimants to “exhaust all possible remedies” before starting a lawsuit, it is necessary to go through this process before filing a lawsuit. Claims with the government agency must be filed 180 days or 300 days from the last instance of sexual harassment; the exact timeline depends on whether there is a state law prohibiting sexual harassment, and a state agency enforcing that state law.
If the EEOC does not pursue the claim on behalf of the employee, they will send the employee a “Right to Sue Letter.” This Right to Sue Letter allows the claimant to file a lawsuit, which would be the final option available for employees who want to sue an employer for sexual harassment.
Do I Need An Attorney For Sexual Harassment In The Workplace?
If you are experiencing sexual harassment in the workplace, you should consult with a local sexual harassment lawyer. An attorney can help you assert your rights and legal options according to your state’s specific laws regarding the matter, and will represent you in court as needed.
