Sexual harassment includes unwanted or unwelcome behavior or remarks that are of a sexual nature. Sexual harassment can occur in many place, including the workplace and school.
Sexual harassment at work can take place in many ways, including:
- Unwanted sexual advances;
- Requests for sexual favors;
- Verbal or physical harassment of a sexual nature; or
- Offensive remarks about an individual’s sex.
Remarks do not have to be sexual in nature to be considered sexual harassment. The remark must only be an offensive comment regarding the individual’s sex. Sexual harassment may be committed by almost any individual, including:
- Individuals in the same company but in a different department; or
- Clients or customers.
Any individual of any gender can be a perpetrator of sexual harassment. Also, any individual of any gender can be a victim of sexual harassment. Sexual harassment can even take place between parties of the same sex.
There are two main types of sexual harassment. These are quid pro quo harassment and the creation of a hostile work environment. The meaning of quid pro quo in Latin is “this for that.” In a quid pro quo sexual harassment situation, an employee is asked to engage in a sexual act in return for some benefit, such as a raise, promotion, or other benfit. This type of harassment can also include an agreement not to take negative action against an employee.
Quid pro quo sexual harassment can be explicit or implicit. The harassing conduct or words are not required to be explained in detail in order to be considered sexual harassment.
The second type of workplace sexual harassment is a hostile work environment. When determining if a hostile work environment exists, the entirety of the circumstances must be considered. The circumstances may include:
- How frequently the conduct occurred;
- How severe the conduct was;
- If conduct was physically threatening or humiliating; and
- Whether or not the conduct unreasonably interfered with the individual’s ability to do their job.
A hostile work environment can include a single comment if it occurs in conjunction with multiple physical acts or threats. The individual factors of each case will determine whether or not sexual harassment rises to the level of a hostile work environment. A large number of states have regulations and statutes that forbid sexual harassment in the workplace. These are in addition to existing federal protections.
In the educational realm, the sexual harassment limits or denies a student’s right to educational benefits or the ability to participate in an educational activity or program in a supportive and safe environment.
Pursuant to state and federal laws, sexual harassment is illegal in an educational setting. Sexual harassment in schools often involves, but is not limited to, a teacher-student relationship or a student-student relationship. Sexual harassment may also occur in the following types of relationships:
- Administrator-teacher; or
What Conduct is not Considered Sexual Harassment?
There are examples of conduct that do not rise to the level of sexual harassment. This may include simple teasing comments, offhand comments, or non-serious, isolated incidents. For example, one comment about a co-worker’s nice outfit would not be considered sexual harassment.
The context and manner in which the behavior occurred determines whether or not conduct constitutes sexual harassment. Politely requesting a date from a co-worker would not constitute sexual harassment. However, repeatedly requesting a date from a co-worker who has already rejected the invitation may constitute sexual harassment.
Consensual conduct does not constitute sexual harassment. If to employees are involved in a romantic relationship, their conduct would not be considered sexual harassment. However, depending on the circumstances, it may violate workplace policies or create a hostile work environment for other employees.
What Can Victims of Sexual Harassment Recover?
A victim of sexual harassment is generally entitled to all available remedies and damages under tort law, or personal injury law. The primary damages that a victim of sexual harassment may recover include:
- Equitable relief, which may include a remedy to help the individual recover from the harassment and may include things such as job reinstatement;
- Compensatory damages, which include monetary compensation for the loss of employment, lost wages, and medical or other expenses related to the harassment; or
- Punitive damages, which are damages that are intended to punish the employer for conduct that is particularly egregious, outrageous, malicious, or otherwise shocking behavior and deter future similar behavior.
Damages are calculated on a case-by-case basis. The value of a claim will depend on the facts of the individual’s case.
It is important for a victim of sexual harassment to keep evidence of the harassment. There are cases in which the harasser may not be aware or understand that their behavior is offensive. If possible, the victim should begin by informing the harasser their actions are inappropriate and unwelcome. This, of course, if not required.
A victim of sexual harassment can strengthen their case by:
- Documenting any and all instances of sexual harassment, including:
- Dates, times and the nature of any instances of sexual harassment that occurred;
- If there were any witnesses who observed the sexual harassment;
- Informing a supervisor, a manager, or the human resources department (HR) at their employer; and
- Filing a claim with the HR department If the sexual harassment persists;
- Filing a claim with the EEOC if the HR department is unable to resolve the issue; and
- Filing a civil lawsuit if the EEOC provides a Right to Sue letter.
Does the Victim Recover From the Harasser or the Employer?
In most cases, in a workplace, a victim will recover from their employer. Even though the harasser is directly responsible for the victim’s injuries, their employer is required to be in control of the workplace. One the employer is aware, they should attempt to stop the harassment.
In cases where the harasser is outside the employer’s control, such as a customer or a client or an employee from another company, it may be more difficult to prove an employer is liable. However, a victim may still be able to recover from their employer for permitting a hostile work environment to exist.
Can the Victim Sue the Harasser?
A victim cannot sue any individual other than their employer for workplace sex harassment. One exception may include a case where the harasser is the owner or supervisor who represents the owner.
If an individual’s employer knows the sexual harassment is occurring, and ignores the issue or does not take appropriate preventative action, there will likely be consequences. A victim in these cases may charge an employer by filing a claim with the Equal Employment Opportunity Commission (EEOC).
A complaint with the EEOC may result in an order from the agency requiring the employer to change their policies. It may also result in a civil lawsuit against the employer. If the harassment is severe or occurs outside of the workplace, the victim can sue the harasser for criminal harassment.
Do I Need a Lawyer for Sexual Harassment Issues?
Yes, it is essential to have an experienced harassment attorney to assist you with any sexual harassment issues you may face. Investigating a sexual harassment claim may be difficult and even scary for an employee. Proving a sexual harassment claim can be even more difficult.
An attorney can assist you in investigating your claim and advising how to gather evidence. They can help you with every step of the claim process and will fight to get you compensation for harassment you have suffered.