Employer Liability for Sexual Harassment

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 What Is Sexual Harassment?

According to the definitions provided in various federal and state employment laws, sexual harassment is a form of discrimination. It may involve requests for sexual favors, unwelcome sexual advances, and many other types of physical or verbal conduct that are sexual in nature. Regardless of the activity, sexual harassment in the workplace is illegal.

Sexual harassment in the workplace may involve persons of the same or opposite sexes as well as can occur between employees of different ranks within a single company (e.g., a supervisor, a co-worker, etc.). In some instances, sexual harassment activity may even happen between an employee and an outside vendor that works with the company on large projects.

In addition, there are two primary types of sexual harassment in the workplace: “quid pro quo” sexual harassment and “hostile work environment” sexual harassment. There are also many other kinds of situations that may qualify as sexual harassment under the employment laws of different states.

Therefore, you should speak to a local sexual harassment attorney immediately if you believe you have been subjected to sexual harassment at work. An attorney can provide valuable legal advice and can guide you through the process of resolving your matter.

When Is an Employer Liable for Sexual Harassment?

An employer’s liability for sexual harassment claims will depend on their position within a company, the type of sexual harassment being claimed, state laws, and the facts surrounding a particular case. Thus, there are some situations wherein an employer may not be held responsible for sexual harassment, even if an individual has evidence of such conduct.

However, it is illegal for an employer to ignore a worker’s claim of sexual harassment in the workplace. In other words, an employer does have a responsibility to hold its workers liable for any actions that may be considered a form of sexual harassment.

Some examples of scenarios for which an employer may be held liable for sexual harassment can include the following:

  • When an employer is viewed as the proxy of their employees, such as the CEO of a corporation;
  • If an employer does not take reasonable steps to prevent the occurrence and continuance of a hostile work environment.
  • When there is evidence that the employer themselves has committed a form of sexual harassment; especially, if it is “quid pro quo” sexual harassment; and/or
  • If the employer has direct authority over an employee or an employee’s supervisor and does not instruct that employee or supervisor to stop their unwanted sexual behavior.

On the other hand, an employer will most likely not be liable for a claim involving sexual harassment if they took reasonable steps to stop it and it is between parties who are under the direction of other supervisors at the company.

What Kinds of Behavior Are Considered Sexual Harassment?

Whether certain conduct is considered to be sexual harassment or not will depend on the laws of a state, the status of the workers involved in the incident, and the facts surrounding a particular claim. For instance, a person who is subjected to sexual harassment by a supervisor may be able to file a claim for “quid pro quo” sexual harassment if their supervisor tells them that they will give them a raise or a promotion in exchange for sexual favors.

Some other examples of sexual harassment in the workplace may include the following:

  • Unwelcome sexual advances or inappropriate touching;
  • Sexually offensive comments, remarks, jokes, conversations, and so on;
  • Displays of sexual material or graphic content (e.g., nude photographs);
  • Threats or requests for sexual favors; and/or
  • Various other activities that are sexual in nature and offend an individual worker or others in the work environment.

What Should I Do If I Am Facing Sexual Harassment At Work?

An employee who is facing sexual harassment issues at work should consider taking some of the following steps:

  • Reviewing their employee handbook and/or any company policies concerning sexual harassment;
  • Gathering evidence and documenting any incidents of unwanted sexual conduct;
  • Discussing the sexual harassment issue directly with their harasser;
  • Filing an internal complaint with their company’s human resources department;
  • Filing a formal report with the Equal Employment Opportunity Commission (“EEOC”) or a similar agency in their jurisdiction; and/or
  • Bringing a private lawsuit against their employer in civil court after receiving a Right to Sue letter from the EEOC.

In addition, it should be noted that there is a time limit on such cases. Therefore, it is very important that an employee report any incidents of sexual harassment as soon as possible, or else they may be barred from taking legal action against an employer if the statute of limitations in their state has expired.

What Can the EOOC Do If an Employer Fails to Address an Employee’s Report of Sexual Harassment?

The EEOC, formally known as the Equal Employment Opportunity Commission, is an agency of the federal government that is in charge of handling harassment and discriminatory matters in the workplace. Specifically, they have the power to enforce various anti-discrimination laws and to conduct investigations into employees’ complaints of sexual harassment and/or employment discrimination.

In particular, an employee will want to file a report of sexual harassment with their local EEOC agency after internal parties, such as human resources, fail to address their complaint. The employee must generally file their report within 45 days of an incident. After the EEOC receives an employee’s report, they will open an investigation into the matter and attempt to find a solution if they find evidence of sexual harassment.

If the EEOC fails to find evidence or an employee feels the remedy was insufficient, they may request an administrative hearing. If they are unhappy with the results of an administrative judge’s remedy as well, then they may file an appeal or bring a private action in civil court once they have received their Right to Sue letter from the EEOC.

What Is an EEOC Right to Sue Letter?

A “Right to Sue” letter is typically issued after an EEOC agency has completed its investigation into a company based on an employee’s complaint for sexual harassment. Once an employee receives a Right to Sue letter, it generally means that the EEOC agent who is in charge of the investigation has closed their case and is now permitting them to file a private action against their employer if they are unsatisfied with the EEOC’s results.

An employee will not be permitted to sue an employer until they receive a Right to Sue letter. Employees who file a private lawsuit prior to receiving this letter will likely have their case dismissed by the court.

In addition, it should be noted that an employee will usually have 90 days to file a lawsuit after they receive a Right to Sue notice. Therefore, it is extremely important that they have an employment law attorney lined up before they file an action in court to ensure that they comply with all of the deadlines and filing requirements for this type of case.

How Should an Employer Conduct an Investigation?

Generally speaking, an employer should conduct an investigation in accordance with the law and company policy on sexual harassment procedures. This usually involves assigning an internal person from a company’s human resources department and having them investigate an employee’s complaint. There should also be a neutral party included in this process so as to avoid potential bias or corruption.

An employer may also want to hold separate interviews with the victim and the alleged harasser to ensure that both sides of the story are documented. This should also be done by an objective party within a neutral space. An employer’s interview and investigation process should refrain from placing a heavy burden on both parties or else they may risk being sued for improper handling of the matter at hand.

In the event that an employer does not find any evidence of sexual harassment, an employee may need to proceed with the next stage of this process by filing a complaint with their local EEOC agency.

What Remedies or Compensation Can I Receive in a Sexual Harassment Claim?

The consequences of sexual harassment in the workplace may result in an injured party recovering a number of legal remedies, such as a compensatory damages award. Briefly, a compensatory damages award, also known as economic damages, provides a form of compensation to reimburse the victim for any injuries they suffered and had to pay for out of their own pocket as a result of the defendant’s conduct.

Compensatory or economic damages may be used to pay for things like loss of future earning capacity, loss wages, medical treatment, hospital bills, and any other expenses related to the harm at issue.

In some instances, a worker may also recover a punitive damages award in addition to the award for compensatory damages. It should be noted, however, that an injured party will only receive punitive damages if there is substantial evidence that an employer willfully or intentionally violated employment sexual harassment laws.

The laws regarding punitive damages will also vary widely by state and thus may be restricted to a certain amount or reserved for specific types of cases. In addition, a person can receive non-economic damages as well. Non-economic damages are often harder to prove than economic damages since they tend to cover injuries that are not quantifiable, such as for:

  • Pain and suffering;
  • Disability or disfigurement;
  • Emotional distress;
  • Loss of enjoyment of life activities; and/or
  • Loss concerning the reputation of the injured party.

Lastly, one other type of legal remedy that a plaintiff may be able to recover if they prevail in the lawsuit is equitable relief. Equitable remedies typically refer to items, such as job reinstatement, mandatory amendments of workplace policies, and/or reinstatement of job benefits if they were terminated prior to the lawsuit.

Do I Need a Lawyer Experienced with Sexual Harassment Cases?

Although it is not necessary to hire a sexual harassment attorney to file a complaint with the EEOC or before you have exhausted all administrative remedies offered in your jurisdiction, it is generally recommended that you hire a local harassment attorney to bring a private lawsuit against your employer.

An attorney who has experience in handling cases involving claims of sexual harassment can explain how the employment laws in your state may affect the outcome of your case as well as the types of penalties that you may receive if the lawsuit is successful. Your attorney can also ensure that you have taken all of the proper steps prior to filing a private action in court.

In addition, your attorney will be able to begin an investigation into your case and can help you to collect evidence while your claim is being reviewed by the EEOC. Finally, your lawyer can also make sure that you file your sexual harassment claim on time. It should be filed before the statute of limitations in your state expires, or else you may be barred from recovering damages.

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