The term “sexual harassment” means behavior, consisting of inappropriate sexual remarks or acts (e.g., advances, unwelcome touching) that is directed at an employee because of that employee’s gender. To qualify as sexual harassment, the person to whom the behavior is directed must find the behavior unwelcome. The behavior need not be explicitly sexual in nature. The behavior must be directed at the victim because of the victim’s gender.
This means that the behavior would not have been directed at the victim if the victim were of another gender. Sexual harassment is a form of employment discrimination. Employment discrimination on the basis of gender is illegal in the United States. An individual can be the victim of sexual harassment if the victim is heterosexual, homosexual, or transgendered.
Not all unwelcome conduct constitutes sexual harassment. Sexual harassment takes place on the job when the conduct interferes with the victim being able to perform their job. It also occurs when the unwelcome conduct creates a work environment that is hostile, intimidating, or offensive. Sexual harassment also occurs when a promotion is made contingent upon submission to sexual advances or requests.
Sexual harassment also occurs when not submitting to advances or requests is used as the basis for a negative personnel decision, such as demotion or termination of employment. Sexual harassment can take the form of jokes, innuendo, unwanted touching or gestures, or insulting or degrading references to a person made on the basis of gender.
Am I the Victim of Sexual Harassment in the Workplace?
There is no bright line that separates behavior constituting sexual harassment from behavior that does not constitute sexual harassment. The following types of harassment can constitute sexual harassment:
- The behavior is undesired.
- The behavior makes the victim feel intimidated or threatened.
- The behavior is severe (has a high intensity).
- The behavior is pervasive (it pervades the workplace). Pervasive behavior is not limited to the workplace. It can spread beyond the workplace. Sexual harassment and can occur through offensive or unwelcome telephone calls or text messages sent to the victim during “off-hours.” Harassment is also considered pervasive when it continues even after a victim complains (to the harasser or to a supervisor or human resources).
- The behavior affects an employee’s ability to perform his or her job. Examples include If harassment results in a “falling off” in job performance, or forces an individual to come in early or late or take time off to avoid being in the harasser’s presence. More extreme examples include if, due to the harassment, an employee must seek medical attention, suffers physically, or refuses opportunities for advancement. If, due to the harassment, an employee ‘s work performance declines severely enough to result in termination or demotion, the harassment may be deemed to be sexual harassment.
No one of the above factors “proves” sexual harassment. In general, the more severe, frequent, pervasive, or unwelcome the harassment, the more likely a judge would find the harassment to be sexual harassment. A lawyer for sexual harassment at work, also called a workplace sexual harassment attorney, can review the facts of your case to determine if you may have been the victim of illegal conduct.
How Do I File a Sexual Harassment Complaint with My Employer?
Employees who believe they have been the victim of sexual harassment should know how to file for harassment at work. Generally, an employee who believes they have been a victim of sexual harassment should notify the employer of this as soon as reasonably possible. When a victim makes a complaint, the employer can then conduct an investigation.
If you believe you are a victim, taking the following steps can aid your case:
- Writing down particulars of specific incidents. Particulars include dates and times of harassment, who might have witnessed it, and what offensive behavior was committed.
- Keeping any documentation of the harassment. A harasser may harass an individual using written means, including letters, voicemails, text, and emails. These materials should be kept by the victim, as potential evidence.
- Reporting an incident of harassment to the human resources department, or other individual designated by your employer to receive complaints.
- Requesting that HR document report of harassment in your personnel file.
The above items constitute the documents, forms, and evidence needed to file a harassment complaint. When you file a complaint, the employer should review the complaint, and should then conduct an investigation. This consists of interviewing the harasser to determine their response to the complaint. The investigation may also consist of interviews of individuals whom you have named as witnesses in your complaint.
Can I Sue My Employer If I’m the Victim of Sexual Harassment in the Workplace?
When the employer completes the investigation, the employer makes a conclusion as to whether the harassment did or did not occur. Regardless of what conclusion the employee reaches, the law permits individuals to file complaints of sexual harassment, with either the government, or, as part of a lawsuit, or both.
In some states, before a victim can file a lawsuit for sexual harassment in civil court, the person must first file a complaint with a government agency. This agency can be either a state agency, such as a state commission on reemployment discrimination, or the federal Equal Employment Opportunity Commission (EEOC). Some states permit simultaneous filing of a claim with both agencies.
Once an agency receives a complaint, it will investigate the allegations. If the agency or the EEOC issues a “Finding of No Cause” letter, the agency has concluded that harassment did not occur. If the agency or the EEOC issues a “probable cause” determination letter, the agency has concluded there is good reason to believe sexual harassment has occurred. Once the agency or agencies have issued their letter or letters, an individual (regardless of what the letter concluded) may then file a sexual harassment lawsuit against the employer.
What are the Different Kinds of Sexual Harassment Claims?
Until several decades ago, the law recognized only one kind of sexual harassment claim. This claim is known as a “quid pro quo” claim of sexual harassment. The phrase “quid pro quo” is Latin for “something for something.” Quid pro quo sexual harassment occurs when a person in a position of power over an employee, such as a supervisor or manager, requests or demands sexual favors. The supervisor or manager makes awarding of pay raises, promotions, and other job benefits, contingent on submission to the request or demand.
Conversely, the supervisor may demand that if the employee does not submit to the request or demand, the employee will suffer negative job consequences. To constitute quid pro harassment, the employee need not necessarily submit to or refuse the request or demand. In many cases, a court will find that the making of the request or demand itself, constitute quid pro quo sexual harassment. A court may find that the request or demand itself is an act of illegal harassment.
Several decades ago, the Supreme Court of the United States ruled that there is a second type of sexual harassment. This type of harassment is known as hostile work environment sexual harassment. To demonstrate this harassment occurred, a plaintiff must demonstrate that, under all of the circumstances, the work environment was overall a hostile one.
Factors a judge will look at to determine whether a work environment is hostile include:
- How often the harassment occurs;
- How severe the harassment is;
- Whether the harassment serves to humiliate a victim;
- Whether harassment physically threatens a victim; and
- Whether the harassment unreasonably interferes with a victim’s being able to perform their work.
Generally, for a plaintiff to demonstrate that harassment occurred, the plaintiff themselves must find the environment hostile, and an “objectively reasonable person,” looking at the facts, must reach the same conclusion. In other words, whether a person believes, or does not believe, that the workplace was hostile, is insufficient to prove a claim. The plaintiff must show that an objective (average and neutral) person would find the behavior to be hostile..
Do I Need a Lawyer to File a Sexual Harassment Claim?
If you believe you have been the victim of workplace sexual harassment, you should contact a workplace sexual harassment lawyer. An experienced sexual harassment lawyer near you can review the facts of your case, advise you how to proceed, and represent you in agency and court proceedings.
