Damages in Sexual Harassment Cases

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 What is Sexual Harassment?

Sexual harassment is unwanted behavior or remarks that are of a sexual nature. Sexual harassment can occur in many places, including the workplace.

Sexual harassment at work can take place in many ways, including:

  • Unwanted sexual advances
  • Requests for sexual favors, often in exchange for some workplace benefit
  • Verbal or physical harassment of a sexual nature
  • Offensive remarks about an individual’s gender

Remarks do not have to be sexual to be considered sexual harassment. The remark may be an offensive comment regarding the individual’s gender.

Harassment may be committed by almost any individual, including:

  • Supervisors or executives of the company
  • Co-workers
  • Clients or customers

Any individual of any gender can be a perpetrator or a victim of sexual harassment. Sexual harassment can even take place between parties of the same sex.

There are two principal types of sexual harassment:

  • 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) 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.
    • This type of harassment can also include an agreement not to take negative action against an employee, such as looking the other way when the employee is late. Quid pro quo sexual harassment can be explicit or implicit. The harassing conduct or words are not required to be explained in detail to be considered sexual harassment.
  • The second type of workplace sexual harassment is the creation or tolerance of a “hostile work environment.’” This type of 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.
    • 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 the conduct was physically threatening or humiliating
      • Whether or not the conduct unreasonably interfered with the individual’s ability to do their job

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. The details of each case will determine whether or not sexual harassment rises to the level of a hostile work environment.

Many states have regulations and statutes that forbid sexual harassment in the workplace. These are in addition to existing federal protections.

What Conduct is Not Considered Sexual Harassment?

There are examples of conduct that do not rise to the level of sexual harassment. This includes simple teasing comments or non-serious and 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 is very important. Politely requesting a date from a co-worker would not constitute sexual harassment, but repeatedly requesting a date from a co-worker who has already rejected an invitation may constitute sexual harassment.

Consensual conduct does not constitute sexual harassment. If two employees are 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. Damages are calculated on a case-by-case basis. The claim’s value will depend on the facts of the individual’s case.

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, transfer of the offensive employee to another division, or an order of no-contact between the victim and the harasser
  • Compensatory damages, which include monetary compensation for the loss of employment, lost wages, and medical or other expenses related to the harassment.
  • Punitive damages are damages that are intended to punish the employer for conduct that is particularly egregious, outrageous, or malicious. Punitive damages are meant to deter future similar behavior. Because they are meant to punish the employer, punitive damages can be quite large, larger than compensatory damages. The bigger the company, the higher the punitive damages award. This is because it takes more money to make a large company feel the weight of the punishment.

A victim of sexual harassment needs 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. That is not required, however.

A victim of sexual harassment can strengthen their case by:

  • Documenting any instances of sexual harassment, including:
    • Dates, times, and details of any instances of sexual harassment that occurred
    • Note down the names of any witnesses who observed the sexual harassment
  • Informing a supervisor, a manager, or the human resources department (HR) at the company. If there is an employee handbook that states what is supposed to be done in cases of sexual harassment, follow those guidelines.
  • If the sexual harassment persists after it has been reported to the employer, filing a claim with the HR department, filing a claim with the Equal Employment Opportunity Commission (EEOC)
  • Filing a civil lawsuit if the EEOC decides not to pursue the matter

Does the Victim Recover From the Harasser or the Employer?

Unless the harasser is the company’s owner, a victim will recover from their employer. Even though the harasser is directly responsible for the victim’s injuries, the employer is the entity that is responsible for what happens in the workplace. Once the employer was made aware of the harassment, they should have stopped it.

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. A victim may still be able to recover from their employer for permitting a hostile work environment to exist.

Do I Need a Lawyer for Sexual Harassment Issues?

Yes, it is essential to have an experienced sexual 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 you on how to gather evidence. They can help you with every step of the claim process and will fight to compensate you for the harassment you have suffered.

If it becomes necessary to file a claim with the EEOC, your lawyer will know how to do that – how to draft the complaint, how to submit the evidence, and how to put the case in the most favorable light for your cause. If the EEOC declines to prosecute the matter themselves, it will issue a “Right to Sue” letter, and your lawyer can file a lawsuit on your behalf.

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