According to the Equal Employment Opportunity Commission (“EEOC”), sexual harassment is a specific form of sex discrimination that involves:
- Unwelcome sexual advances;
- Requests for sexual favors; and
- Various other verbal or physical actions of a sexual nature, all of which are considered to be illegal.
Additionally, sexual harassment may refer to any offensive comments or remarks that are made about a person’s gender, although this is more commonly associated with gender discrimination.
When sexual harassment occurs in a work setting, it is also considered to be a form of employment discrimination. The offensive conduct can occur between a supervisor and an employee or between two colleagues at the office. Generally speaking, there are two types of sexual harassment claims in the workplace: “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 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 a hostile work environment sexual harassment is when someone working at the business continues to threaten or repeat sexual advances toward another employee. They make the employee so uncomfortable that it impacts their work performance or attendance.
The distinguishing difference between these two categories of workplace sexual harassment is that quid pro quo must involve a higher-ranking employee than the person being harassed. At the same time, the hostile work environment type is associated with offensive conduct rather than who is doing it. In some cases, the victim may experience both types simultaneously.
Another category that could be considered workplace sexual harassment would be non-direct sexual harassment. This can happen in either of the scenarios mentioned earlier, but it occurs against another person who is not the originally intended victim. An example of this is if a bystander witnesses their co-worker being sexually harassed or offended by constantly overhearing dirty remarks or jokes. They may have a claim for “non-direct” sexual harassment. It could qualify as “direct” sexual harassment in certain instances.
Regardless of the parties’ relationship or how it is classified, people of any gender can experience sexual harassment as it can happen between parties of the same sex or different sex. The defining factor in identifying sexual harassment is the nature of the offending party or parties’ behavior and whether the recipient experienced harm because of their conduct.
What Are Some Laws That Protect Employees From Sexual Harassment In The Workplace?
Along with many other types of discrimination that occur in the workplace, the EEOC is responsible for enforcing any federal law associated with sexual discrimination and harassment.
An example of this would be how Title VII of the Civil Rights Act of 1964 (“Title VII) is just one of the federal laws that protect people from employment discrimination, which includes sexual harassment. The EEOC helps to ensure that employers adhere to the standards set out in Title VII and will hold them accountable for any violations if a claim has been filed.
However, it is imperative to note that Title VII only applies to employment agencies, unions, and companies with 15 or more employees. If the business does not meet one of these criteria, the victim of sexual harassment in the workplace must rely on state laws or company policies for protection.
Each state has some version of a statute in place prohibiting sexual harassment conduct in the workplace. Some states have statutes that explicitly state that it is illegal, while others list workplace sexual harassment as a category under their discrimination laws.
In response to the #MeToo era, some states ( including Connecticut, Hawaii, and Florida) have drafted legislation to prevent non-disclosure agreements (“NDAs”) from protecting employers who violate sexual harassment laws. When there does not seem to be a federal or state law directly associated with a specific claim, the employee should review their employment contract, an employment handbook, or an employer’s company policies to determine how best to proceed.
While sexual harassment conduct in the workplace has always been illegal, and employers should have always abided by the relevant laws, the #MeToo movement contributed to shining a brighter light on sexual harassment offenses. Because of this, it has become a staple of good business practice to include explicit rules in company documents prohibiting such behavior.
How Can I File A Complaint For Sexual Harassment In The Workplace?
There are several ways in which an employee can file a sexual harassment complaint. However, before filing, the employee should speak with their offender directly if they feel safe doing so. The intention behind this is that the offender may not know when their behavior has offended someone, and later if they do not comply with a request to stop, it can be used as evidence to show they were on notice that their actions made the victim uncomfortable or harmed them.
Before filing, the victim should also collect and document any incidents of harassment. Examples include, but may not be limited to:
- Recording the event;
- Finding a third party who witnessed or experienced it themselves; and
- Informing their supervisor. If the behavior still does not stop, the next step would be filing a report with their human resources department.
If there is no one else to speak to at the company, or the complaint to human resources was ineffective, the victim can file a complaint with a government agency such as the EEOC. The EEOC will investigate the company and can hold the employer responsible. Remedies resulting from an investigation could include forcing the employer to change their company policies to prevent future incidents.
Only after all of these steps have been taken can the victim file a lawsuit, a process known as “exhausting all administrative remedies.” Simply put, a complaint must be filed with the EEOC before a person will be permitted to sue. The next step would be to contact an employment lawyer immediately for further advice on how to proceed with their claim. Because each state may have different processes and requirements for filing a claim, it is advised to work with a local lawyer.
When Should I Contact A Lawyer For My Sexual Harassment Case?
Before you decide to take any action by reporting your sexual harassment case to human resources, you may want to consult with a lawyer. A lawyer is necessary if you want to sue the defendant in court.
Some questions to discuss with your attorney include:
- Is it legally defined as sexual harassment, meaning is this a valid legal claim?
- How should I interact with the harasser going forward?
- Should I report the harassment to an agency like the EEOC or the police?
- How can I protect myself from future harassment when my employer fails to take action?
- What should I do if my employer retaliates after I report the harassment?
An employment lawyer can help you organize what you need to say to your human resources department to establish the legal grounds for any potential legal claims. They can also guide you on:
- How to document the harassment;
- How to deal with the harasser if the conduct continues; and
- How to monitor your employer’s action to screen against retaliation.
A sexual harassment lawyer can help you through every step of your potential harassment case, from documentation to filing EEOC claims. They will also help you understand your specific rights and legal options under your state’s laws and will also be able to represent you in court as needed.
