The federal government and most state governments agree that employees should feel safe in the workplace, which is why they have enacted statutes and regulations protecting employees from sexual harassment.
It is never tolerable to sexually harass an employee, and it is further not the employee’s sole responsibility to either accept the harassment or stop the harassment themselves.
However, there are certain steps that an employee must take when they have been the victim of sexual harassment in order to ensure that they have as good a chance at succeeding in their claim.
What is Sexual Harassment?
Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC) as harassment of a person (whether employee or applicant) based on the person’s sex.
Behaviors that are considered harassment can include making unwelcome sexual advances, requesting sexual favors, and other verbal or physical behavior of a sexual nature.
Additionally, making offensive remarks about a person’s sex can be considered sexual harassment. It usually takes more than one isolated statement to be considered sexual harassment. Rather, the comments or conduct must be to such a degree that they create a hostile work environment.
It is important to recognize that any person of any gender can be the perpetrator of sexual harassment or be the victim of sexual harassment. Also, sexual harassment can occur between parties of the same sex.
The perpetrator may also be a supervisor of the employee, a supervisor in another area of the workplace, a colleague or coworker, or a non-employee. Non-employees may include vendors, clients, customers, or others who work with but not for the employer.
Further, it is not necessary to show that the sexual harassment resulted in some kind of tangible employment action (including termination, demotion, or change in terms of employment) or economic injury.
What are the Types of Sexual Harassment?
There are two main types of sexual harassment. The first type of sexual harassment is known as quid pro quo. In Latin, ‘quid pro quo’ means ‘this for that.’ In this type of sexual harassment, there’s an exchange of favors. The employee (usually) is asked to give sexual favors. The supervisor (usually) offers to provide some kind of career opportunity such as a raise, promotion, or training opportunity or agrees to not take some kind of negative action like firing the employee in exchange for those sexual favors.
Quid pro quo sexual harassment may be both explicit or implicit. The conduct or words do not have to be explicitly spelled out in order to be considered sexual harassment.
The second type of sexual harassment is when the conduct or words create a hostile work environment.
The U.S. Supreme Court has explained that to determine whether there is a hostile work environment, the entirety of the circumstances must be considered. These circumstances include:
- The frequency of the discriminatory conduct;
- The severity of the discriminatory conduct;
- Whether the conduct is physically threatening or humiliating; and
- Whether the conduct unreasonably interferes with an employee’s ability to do their job.
The Court did admit that the psychological impact of the conduct on the plaintiff could be considered as a factor in determining whether there was a hostile work environment. However, the Court stressed that the psychological impact on the plaintiff must be considered as part of the total circumstances.
Thus, a single comment coupled with multiple physical acts or threats might amount to a hostile work environment. Whether sexual harassment amounts to a hostile work environment depends largely on the individual factors in every case.
Lastly, in addition to federal protections against sexual harassment, many states also have statutes and regulations forbidding sexual harassment in the workplace.
What Should You Do If You Believe You Have Been the Victim of Sexual Harassment in the Workplace?
It is important for an employee who believes they are the victim of sexual harassment to report the incident or conduct to Human Resources or a direct supervisor. It helps to make sure that this report is also in writing.
If the situation is not adequately addressed, it may be necessary to take legal action. The first step in legal action is to file a claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will then notify the employer in writing about the claim and open an investigation.
If the EEOC believes there is a likelihood that there was sexual harassment, they may file a claim on your behalf. However, even if they don’t, you may still file a sexual harassment claim once the EEOC has finished its investigation.
Should I Consult an Attorney If I Believe I’ve Been Sexually Harassed?
If you believe you have been the victim of sexual harassment in the workplace, consult an employment law attorney to determine your rights. An attorney can help ensure you preserve your case and have the best opportunity to succeed.