Employer Liability for Sexual Harassment
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What is Sexual Harassment?
In 2015, over 6,800 Americans filed sexual harassment complaints with the Equal Employment Opportunity Commission (EEOC). Sexual harassment comes in many forms. Sometimes, harassment is quid pro quo, such as when a supervisor demands sexual favors in exchange for job retention or advancement. Other times, you may experience a hostile work environment when there is severe and ongoing sexually offensive behavior (including unwelcome advances).
Different liability rules apply, depending on whether the harasser is a company leader, a supervisor, or a co-worker. Although women are typically the victims of sexual harassment, both genders experience this unwelcome and illegal behavior.
Federal, state, and municipal laws clearly prohibit harassment based on sex, gender, sexual orientation, and gender identity. If you have experienced sexual harassment, you may be entitled to compensation and damages. You also may have a criminal case against the harasser, depending on his or her behavior.
When is an Employer Liable for Sexual Harassment?
An employer's liability for sexual harassment depends on the harasser's position in the company or workplace, and the kind of sexual harassment being alleged. So, even if you can prove that you experienced sexual harassment, it is possible that your employer may not be liable.
However, an employer has additional responsibility to hold other co-workers or supervisors liable for their actions, involvement, and behavior associated with sexual harassment. It is unlawful for a employer to ignore the situation and fail to take remedial steps to fix the situation.
- Employer or company officials who may be treated as the employer's proxy (i.e., a company's president): Since such individuals are the employer for most purposes, they are directly liable for any harassment they personally commit.
- Immediate supervisors: Since such individuals are not high enough to be the employer's proxy, but are given direct authority over the victim, the employer is generally strictly liable for harassment committed by immediate supervisors.
- Quid pro quo harassment: The employer is strictly liable only if there is proof the immediate supervisor invoked and improperly used actual authority, and there are fewer supervisors than employees, making them easier to train and monitor.
- Hostile work environment: The employer is strictly liable but may attempt to establish as an affirmative defense that it took reasonable care to prevent or promptly correct harassing behavior and the employee unreasonably failed to use your anti-discrimination policy, or to otherwise avoid or reduce any harm done.
- Co-workers, other supervisors and customers: Since these individuals are not the employer's proxies and do not have direct authority over the victim, it is unlikely the employer will be held liable for harassment committed by them.
- Hostile work environment: If an employer knew or should have known that such individuals were sexually harassing employees and the employer failed to take action or reasonably act on their knowledge or any complaints, they may be liable for their negligence.
What Kinds of Behavior are Considered Sexual Harassment?
Sexual harassment can vary depending on the situation and the persons involved in the conduct. Some types of behavior that are considered sexual harassment are:
- Unwelcomed sexual advances or touching
- Requests for sexual favors
- Direct and indirect threats for sexual activity
- Bribe offers of sexual favors
- Sexually offensive comments or jokes,
- Unwelcomed brushing or intentional touching
- Displays of sexually illicit materials or graphic content
What Should I Do If I Am Facing Sexual Harassment At Work?
If you believe that you are facing sexual harassment at work by your employer, you may do the following steps:
- Consult the employee handbook or policies related to sexual harassment.
- Take notes and gather evidence of the sexual activity or conduct.
- Speak directly to the harasser and explain that their conduct or behavior is bothering you.
- Before you file a complaint with an anti-discrimination agency or a lawsuit, you should report the harassment to Human Resources.
- File a complaint with the Equal Employment Opportunity Commission (EEOC).
- File a Private Civil Suit by getting an EEOC Right to Sue Letter.
Do not wait to file your complaint. In most cases, you only have up to 6 months or 180 days from the date of the conduct to file a sexual harassment or discrimination charge.
What Will the EEOC Do After I File a Complaint?
After you have filed the sexual harassment complaint with the EEOC, the EEOC will notify your employer that you have filed charged and will start an investigation regarding the matter. If the EEOC finds that there is truth to the allegations during the investigation, it will file a lawsuit in federal court against your employer. During this process, an employer is prohibited to retaliate against you or any other employee because of the charges that were filed.
What is an EEOC Right to Sue Letter?
A Right to Sue letter indicates that EEOC has closed its case and gives you the right to file a private lawsuit. If you file a federal lawsuit before receiving a Right to Sue letter, it will be dismissed. Once you receive a Right to Sue letter, you must file a federal lawsuit within 90 days. If you need help with a lawsuit, contact a sexual harassment lawyer for help. A lawyer can ensure that you meet all of the filing requirements and help you throughout the litigation process.
How Should an Employer Conduct an Investigation?
As stated earlier, the employer should appoint an internal investigations committee. However, such a committee should include at least one person outside the company’s management structure to help relieve any potential for bias or corruption. In addition, any investigation must not have either alleged perpetrators or victims conducting the investigation.
The investigation should include interviews with both alleged harassers and victims to help create a feeling of neutral and objective questioning. During the investigation, it may be wise to separate the parties from one another. Such separation, however, should not significantly burden either the assumed victim or perpetrator because such an oppressive move might be considered retaliatory punishment.
What Remedies or Compensation Can I Receive in a Sexual Harassment Claim?
Sexual harassment victims may entitled to a variety of compensation and remedies, including:
- Economic Damages: compensation for your lost wages, future wages, or other related expenses,
- Equitable Relief: remedies that help you recover from the harassment (including job reinstatement),
- Compensatory Damages: compensation for your pain and suffering, and
- Punitive Damages: compensation meant to punish your employer for the harassment.
Compensatory and punitive damages are only permitted if there is evidence of willful or intentional violations. Damages are calculated on a case-by-case basis. The value of your claim will depend on its individual facts.
Do I Need a Lawyer Experienced with Sexual Harassment Cases?
Employment discrimination claims are complicated because procedural laws vary depending on where and when you file your claim. An employment lawyer can help you determine if you have a sexual harassment case, figure out if your employer can be held liable, and also help you with EEOC and FEPA filing deadlines. Also, because agencies will not get to your claim immediately, a lawyer can help you investigate and pursue alternative remedies. If you are being sued for employment discrimination, you should speak to a lawyer immediately.
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Last Modified: 10-05-2017 03:16 PM PDT
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