Sexual harassment consists of sexual advances that the actor knows or has reason to know are unwelcome. Generally, sexual harassment can only occur after the first advance, i.e., upon the actor learning of the victim’s sexual disinterest. The victim must actively communicate that the advance is unwelcome. Any reciprocal behavior shown by the victim such as flirtation, removal of clothing, or the use of sexually explicit language will be a defense in the actor’s favor.
According to Title VII of the Civil Rights Act of 1964, sexual harassment is a form of sex discrimination occurring in the workplace. Some new laws are finding sexual harassment where there is a relationship of trust existing between doctor and patient, attorney and client, landlord and tenant, and so forth.
What Can Victims of Sexual Harassment Recover?
Victims of sexual harassment are generally entitled to all available remedies and damages under the law of tort, which is the law of personal injury. The primary forms of recovery by the victim of sexual harassment include:
- Compensatory damages such as loss of employment ability, loss of wages, medical expenses, and other economic misfortune as a result of the harassment.
- Emotional damages such as intentional infliction of emotional distress. The jury will consider all facts and circumstances in awarding emotional damages.
- Punitive damages when the harasser’s misconduct is particularly egregious, outrageous, malicious, or otherwise shocks the jury’s conscious. Punitive damages may also include reasonable attorney’s fees.
Does the Victim Recover From the Harasser or the Employer?
In a work environment, the victim will typically recover from the employer. Although the harasser is directly responsible for the victim’s injury, the employer is required to be in control of the workplace. The employer should know about and stop the harasser.
Holding the employer liable can be more difficult if the harasser is someone outside the employer’s control, such as a customer/client or a worker from another company. The victim can still recover from the employer for allowing a hostile work environment to exist.
Can the Victim Sue the Harasser?
Victims cannot sue anyone other than the employer for workplace sex harassment. The exception is if the harasser is the owner or a supervisor who represents the owner. If the harassment is extremely severe and/or if the harassment happens outside work, the victim can sue the harasser for criminal harassment.
Do I Need a Lawyer?
Investigating and proving a sexual harassment claim can be difficult. An employment attorney will help you investigate your claim and collect just compensation for the harassment you suffered.