Sexual harassment is a form of discrimination that involves unwelcome sexual conduct. According to the section of a federal law known as Title VII of the Civil Rights Act of 1964 (“Title VII”), there are two main types of sexual harassment: “quid pro quo” and “hostile work environment.”
The first type is “quid pro quo” sexual harassment. Quid pro quo is a Latin term that means “something for something.” Quid pro quo harassment occurs when a person of higher rank at a company (like a supervisor or executive-level employee) asks a person who is positioned lower than them in the company to perform a sexual favor in exchange for some sort of work benefit, such as a promotion or a raise.
As for the second type, “hostile work environment,” sexual harassment happens when employees feel uncomfortable, scared, or intimidated due to unwelcome conduct.
Hostile work environment harassment can occur when an employee makes unwelcome sexual advances or other sexual behaviors towards a coworker, and those actions create an uncomfortable and offensive atmosphere. It is not required for individuals to have different levels of power in the workplace, such as a manager or supervisor, for this type of harassment to occur.
It is important to be aware that not every annoyance or isolated incident will cause the work environment to rise to the level of harassment. If, however, an employee is in a situation where they have been subjected to unwelcome and offensive conduct that has interfered with their ability to do their work, they may be able to sue their employer for a hostile work environment based on harassment.
Regardless of whether it is quid pro quo or hostile work environment sexual harassment, both will require sexual harassment evidence to support a claim. Without evidence of sexual harassment, you will not be able to win your case because there will be no way to prove that an incident occurred.
Some common examples of the types of evidence required to prove a sexual harassment case include:
- Sexually explicit correspondence or communications, such as letters, emails, text messages, voicemails, videos, or photographs
- Copies of any complaint you filed against the employer or the other employee, including responses or other indications of what steps were taken, if any.
- The harassing employee’s personnel files and responses between that employee and a manager or human resources representative at the company
- Testimony from witnesses (e.g., eyewitnesses, other victims)
- Company documents, such as employment contracts or employee handbooks that contain policies against sexual harassment
- Proof that you were demoted or fired after turning down sexual advances from a supervisor
- If you cooperated with the harasser, proof that you received work benefits
- Personal written accounts (like a journal) of daily sexual harassment incidents
What Are the Elements of a Sexual Harassment Claim?
The elements for proving sexual harassment at work will depend on both the type of sexual harassment claim and the laws of the state in which the case is being heard. In general, the following elements must be shown:
- The employee belongs to a protected class of persons (e.g., based on their sex or gender)
- The employee was subjected to unwelcome advances, harassment, requests, or other sexual conduct
- The sexual conduct was severe or pervasive and would be considered offensive to a reasonable person.
- Depending on the type of sexual harassment, the conduct must either be so severe that a single incident would constitute sexual harassment or so pervasive that the combined frequency of the actions would constitute sexual harassment
- Depending on the type of sexual harassment:
- The employee either received job benefits for participating in the sexual act or lost job benefits for refusing to do the sexual favor or
- The harassment persisted for such an extended period that it interfered with the employee’s job conditions or work performance, and
- The employee can prove that an incident occurred, a supervisor or colleague was responsible for the conduct, and the employee suffered damages due to the harassment.
It is important that an employee review the laws in their state to determine the elements that must be proven in their jurisdiction. Thus, it may be in an employee’s best interest to contact a local harassment lawyer for further assistance.
How Can I Prove a Sexual Harassment Claim Against a Supervisor?
As discussed above, there are two types of sexual harassment claims. Although a sexual harassment claim can be filed against a supervisor for either type of sexual harassment, it is usually one based on asking for sexual favors from someone in a lower position than them at the company.
If you did not comply with the supervisor’s request, a harassment claim can be filed if:
- You received a demotion or were terminated from your position because you did not perform the sexual request
- You received worse job assignments, overall job duties, or less desirable work schedules
Sexual harassment can occur when you do not comply with the request. Examples include:
- You receive a promotion, a raise, or both because you agreed to perform the sexual favor
- You received more favorable work assignments or overall job duties
- You were able to transfer between departments or office locations without any or few obstacles
- You received better treatment than other employees in the same position, such as leeway for being late or more vacation days.
In addition to employees who were asked to perform a sexual act, other employees who were not asked to do the favor may be able to sue a supervisor for quid pro quo sexual harassment. This can happen when the employee who complied with the supervisor’s request received favorable treatment, such as advancing in the company over better-qualified workers. Those workers may file a discrimination claim.
How Can I Prove a Sexual Harassment Claim Against a Co-Worker or Other Individual?
Sexual harassment claims against a co-worker or other individuals in the workplace will constitute hostile work environment sexual harassment. In general, you will need to prove the following:
- You were a member of a protected class of persons (e.g., race or gender)
- You were subjected to unwanted physical or verbal sexual conduct based on your membership in that class
- The unwanted physical or verbal sexual conduct affected your position unreasonably interfered with your job performance, or created an offensive or hostile work environment.
A court will consider how often the conduct occurred, how severe the conduct was, and the timing or context of the conduct. For example, if it was a single incident that happened while discussing sex for a marketing campaign for sexual products (e.g., lubricants) or in a medical environment (e.g., a gynecologist’s office) to discuss treatments for a patient, then it is less likely that the alleged offender meant to perpetuate sexual harassment in the workplace.
Some examples of sexual conduct that may give rise to a claim for hostile work environment sexual harassment include:
- Displaying sexual content in the workplace (e.g., nude photos kept on an employee’s desk, sexually graphic images on an employee’s computer screensaver, etc.)
- Making lewd jokes, sexual gestures, or comments
- Showing, sending, or requesting sexual notes, emails, photos, and so on
- Asking a fellow employee sexually intrusive questions
- Making sexual remarks about how an employee looks or dresses
- Intentionally exposing oneself to another employee
How Can I File a Work Sexual Harassment Claim?
To prepare and file a claim for sexual harassment in the workplace, an employee should start by trying to work within the company,
- Consult company policies or handbooks to learn more about what to do when a worker experiences sexual harassment at this company.
- Gather evidence of sexual harassment, as described above
- Speak directly to the alleged harasser and inform them that their behavior is inappropriate or creates an uncomfortable work environment
- Report the sexual harassment to a supervisor or human resources manager, and be sure to keep copies of the report, follow-up response, and the outcome
If reporting the incident to someone in the workplace does not resolve the issue, then work with a lawyer to file a complaint with the local Equal Opportunity Commission (“EEOC”) office. The EEOC will then investigate to determine how to handle the matter. If the investigation does not solve the issue or produces unfavorable results, contact a local harassment lawyer for further guidance.
If the lawyer determines that there is a viable claim and the employee has already received a Right to Sue Letter from the EEOC, then the lawyer can file a private civil lawsuit on behalf of the employee. It is important to note that a worker will not be permitted to bring a private civil lawsuit against their employer or another employee without a Right to Sue Letter from the EEOC.
Thus, they must file a complaint with the EEOC before they can file a sexual harassment lawsuit in court. Drafting that complaint can be technical and complex. It is important to get a lawyer involved so that the complaint is filed correctly.
Do I Need to Hire a Lawyer if I Have a Workplace Sexual Harassment Claim?
If you have experienced any type of sexual harassment in the workplace, then it may be in your best interest to hire a local sexual harassment lawyer as soon as possible. The closer in time to an incident that you file a claim for sexual harassment, the better your chances are of bringing a successful claim.
There are many different ways your lawyer can help you prepare to report the harassment or ensure that the harassment is properly dealt with if you have already reported it. Your lawyer will also give you advice on how you can continue to protect yourself as your case progresses.
Your lawyer can provide support as you prepare to handle your harassment issue. It is important to keep documentation of any harassment and discussion about the issue with your employer throughout the process.
Your attorney can also communicate with your employer and request a proper investigation of the issue. Proving that a hostile work environment or sexual harassment did occur can sometimes be difficult. For this reason, it is important to have a lawyer helping you show that it affected your ability to work and your health, including your mental health.
In addition, your attorney will help you understand your rights and develop legal strategies to resolve the problem. They can also assist by filing any paperwork and representing you in front of agencies or the court. Another very important aspect is that your attorney can monitor how your employer responds to your complaint and help ensure you are not retaliated against.
An experienced harassment attorney can provide further guidance on your matter and assist you with filing a complaint with the EEOC. If, after the EEOC investigation, the issue is still not resolved, then your attorney can also help you build a strong case to put a stop to any unlawful or inappropriate conduct that you are experiencing at work, including filing a lawsuit if necessary.
