Sexual harassment is an issue that many individuals face. It comes in many forms. Over 6,800 Americans filed sexual harassment complaints with the Equal Employment Opportunity Commissions (EEOC) in 2015. This number increased to 7,514 in 2019.
In some cases, the harassment is quid pro quo, such as when a supervisor demands sexual favors in exchange for job retention, advancement, or benefits. In other cases, an individual may experience a hostile work environment due to severe and ongoing sexually offensive behavior, which can include unwelcome advances.
There are different liability rules that apply, depending on whether the individual harassing others is a company leader, a supervisor, or a co-worker. Although the typical victim of sexual harassment is a woman, both genders can be the victim of this unwelcome and illegal behavior.
Municipal, state, and federal laws prohibit harassment based on sex, gender, or sexual orientation. If an individual has experienced sexual harassment, they may be entitled to compensation and damages. They may also have a criminal case against the harasser, depending on their behavior.
When is an Employer Liable for Sexual Harassment?
Whether or not an employer is liable for sexual harassment depends on the harasser’s position in the company or workplace, and the kind of sexual harassment that is alleged. Even if an individual can prove they experienced sexual harassment, it is possible their employer may not be liable.
An employer has a responsibility to hold co-workers or supervisors liable for their actions, involvement, and behavior associated with sexual harassment. It is unlawful for an employer to ignore a complaint of sexual harassment or fail to take remedial steps to remedy the issue.
An employer’s liability for sexual harassment depends on the circumstances, including:
- When an employer or company official is treated as an employer’s proxy, such as a company president, the employer is directly liable for their actions since such individuals are the employer for most purposes;
- In the case of an immediate supervisor, since they are not the employer’s proxy but are given direct authority over the victim, their employer is generally strictly liable for harassment committed by an immediate supervisor;
- An employer is strictly liable for quid pro quo harassment only if there is proof the immediate supervisor invoked and improperly used actual authority. There must also be fewer supervisors than employees, making them easier to train and monitor.
- An employer is strictly liable for a hostile work environment but may attempt to establish an affirmative defense if the employer took reasonable care to prevent or promptly correct harassing behavior and that the employee unreasonably failed to use the anti-discrimination policy, or to otherwise avoid or reduce any harm done;
- An employer may also be liable for negligence regarding a hostile work environment if the employer knew or should have known that individuals were sexually harassing employees and the employer failed to take action or reasonably act on their knowledge or complaints;
- It is unlikely that an employer will be held liable for harassment committed by co-workers, other supervisors or customers because these individuals are not the employer’s proxies and do not have direct authority over the victim.
What Kinds of Behavior are Considered Sexual Harassment?
What behavior is considered sexual harassment will vary depending on the situation and the individuals involved in the conduct. Examples of behavior that may be considered sexual harassment include:
- Unwelcome sexual advances or touching;
- A request for sexual favors;
- Any direct or indirect threats for another to become the sexual activity;
- A bribe offer of a sexual favor;
- A sexually offensive comment or joke;
- Any unwelcome brushing or intentional touching; or
- A display of sexually illicit material or graphic content.
What Should I Do If I Am Facing Sexual Harassment At Work?
If an individual believes they are facing sexual harassment at work, they may follow these steps:
- Review the employee handbook or any policies related to sexual harassment;
- Take notes and gather evidence of the unwanted sexual activity or conduct;
- Speak directly to the harasser and explain that their conduct or behavior is inappropriate and unwelcome;
- Prior to filing a complaint with an anti-discrimination agency or a lawsuit, an individual should report the harassment to Human Resources at their employer;
- File a formal complaint with the Equal Employment Opportunity Commission (EEOC); and
- File a Private Civil Suit after receiving an EEOC Right to Sue Letter.
It is important to file a complaint as soon as possible. In most cases, an individual has only 6 months, or 180 days, from the date of the harassment to file a sexual harassment or discrimination charge.
What Will the EEOC Do After I File a Complaint?
After an individual has filed a sexual harassment complaint with the EEOC, they will notify the individual’s employer that a charge has been filed. The EEOC will then investigate the allegations.
If the EEOC finds the allegations are true, they will file a lawsuit in federal court against the individual’s employer. During this time, the employer is prohibited from retaliating against the employer or any other employee as a result of the charges that were filed against them.
What is an EEOC Right to Sue Letter?
If an individual receives a Right to Sue letter from the EEOC, it means the EEOC has closed its case and gives them the right to file a private lawsuit. If an individual files a federal lawsuit prior to receiving the Right to Sue letter, the lawsuit will be dismissed.
Once an individual receives the Right to Sue letter, they must file their federal lawsuit within 90 days. It is important to have the help of an attorney during this process to ensure all deadlines and filing requirements are met.
How Should an Employer Conduct an Investigation?
An employer should appoint an internal investigations committee to conduct an investigation. This committee should include at least one individual who is outside the company’s management structure to assist in avoiding bias or corruption. Additionally, those conducting the investigation must not include the alleged perpetrators or victims.
The investigation should include interviews with the alleged harasser and the victim. This will provide an environment of neutral and objective questioning. It is wise to separate the parties during the investigation. The separation, however, should not significantly burden either party because it may be considered a retaliatory action.
What Remedies or Compensation Can I Receive in a Sexual Harassment Claim?
A victim of sexual harassment may be entitled to a number of types of compensation, including:
- Economic damages, which include compensation for the individual’s lost wages, future wages, or other related expenses;
- Equitable relief, which includes remedies that help the individual recover from the harassment and may include things such as job reinstatement;
- Compensatory damages, which is monetary compensation for an individual’s pain and suffering; or
- Punitive damages, which are damages that are intended to punish the employer and deter future similar behavior.
Compensatory and punitive damages are only awarded if there is evidence of willful or intentional violations. Any damages awarded are calculated on a case-by-case basis. The value of an individual’s claim will depend on the facts of their case.
Do I Need a Lawyer Experienced with Sexual Harassment Cases?
Yes, it is essential to have the help of an experienced harassment lawyer with any sexual harassment case. These claims are complex and the laws vary depending on the jurisdiction.
An attorney can review your case to determine if a sexual harassment claim is available, evaluate whether or not your employer can he held liable, and assist you with an EEOC claim. A lawyer can also assist you with a private lawsuit if you receive a Right to Sue letter.
In addition, since an agency such as the EEOC will not be able to process your claim immediately, your lawyer may be able to help investigate your case and pursue alternative remedies. You should speak to a lawyer as soon as possible to ensure your claim is filed early enough to be considered.