When people accept a job, they typically focus on concerns such as raises, promotions, and potential benefits like healthcare. However, worrying about sexual harassment should never be part of this list. If sexual harassment does become a concern, legal action may be necessary for protection.
The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as a form of sex discrimination that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical actions of a sexual nature.
Sexual harassment is illegal, and any offensive comments about a person’s gender may also be considered sexual harassment or gender discrimination.
Sexual harassment in the workplace is a form of employment discrimination, and it can occur between a supervisor and an employee or between colleagues.
Persons of any gender can experience sexual harassment, regardless of the relationship between the parties involved. The key factor is the nature of the offending behavior.
What are Some Examples of Sexual Harassment in the Workplace?
There are two main types of sexual harassment claims: “quid pro quo” and “hostile work environment.”
Quid Pro Quo
In a quid pro quo sexual harassment scenario, the power dynamics between the supervisor and the lower-ranked employee play a crucial role. The supervisor may use their position of authority to pressure the employee into engaging in sexual behavior, with the promise of a tangible employment benefit.
For example, imagine a supervisor who consistently makes inappropriate comments about an employee’s appearance, suggesting that the employee would look better in more revealing clothing.
One day, the supervisor privately tells the employee that there’s an upcoming promotion opportunity and that they would be willing to recommend the employee for the position if the employee agrees to go on a date with the supervisor. Feeling pressured and worried about losing the chance for a promotion, the employee reluctantly agrees.
In this situation, the supervisor has engaged in quid pro quo sexual harassment by conditioning the employee’s career advancement on the employee’s submission to unwanted sexual advances.
Hostile Work Environment
A hostile work environment occurs when unwelcome conduct of a sexual nature is so severe or pervasive that it creates an intimidating, hostile, or offensive work environment, thereby affecting the targeted employee’s job performance or causing emotional distress. This type of harassment can be perpetrated by anyone in the workplace, including coworkers, supervisors, or customers.
For example, imagine an employee working in a small office where their coworker consistently makes sexually suggestive jokes and comments about the employee’s body. The coworker often sends explicit images or videos to the employee via email or text, despite being asked to stop.
The employee feels uncomfortable and humiliated but is too afraid to report the behavior, fearing retaliation or a damaged reputation. As a result, the employee’s job performance suffers, and they experience anxiety and stress, often calling in sick to avoid encountering the coworker.
In this case, the coworker’s behavior has created a hostile work environment, where the employee feels unsafe and cannot perform their job effectively due to the constant harassment.
Both quid pro quo and hostile work environment harassment can significantly negatively impact the victims, such as emotional distress, decreased job satisfaction, and even physical health problems. These forms of harassment can also damage the overall work environment, leading to reduced morale and productivity, increased turnover, and potential legal liabilities for the employer.
The primary difference between these two types of sexual harassment is that quid pro quo must involve a higher-ranking employee than the person being harassed, while the hostile work environment focuses more on the offensive conduct rather than the person responsible. In some cases, both types of harassment may occur simultaneously.
Non-Direct Sexual Harassment
Additionally, “non-direct” sexual harassment can occur when an individual is affected by the harassment of another person. For example, if a bystander witnesses a coworker being sexually harassed or is offended by overhearing inappropriate comments, they may have a claim for non-direct sexual harassment.
What are Some Laws that Protect Employees from Sexual Harassment in the Workplace?
The EEOC enforces federal laws related to sexual discrimination and harassment, such as Title VII of the Civil Rights Act of 1964, which protects individuals from employment discrimination, including sexual harassment. However, Title VII only applies to employment agencies, unions, and companies with 15 or more employees. In cases where Title VII does not apply, victims must rely on state laws or company policies for protection.
Every state has some form of statute prohibiting sexual harassment in the workplace. Some states explicitly list it as illegal, while others include it under broader discrimination laws. In response to the #MeToo movement, some states have drafted legislation to prevent non-disclosure agreements from protecting employers who violate sexual harassment laws.
Company policies can also provide protection when federal or state laws do not apply directly. The #MeToo movement has prompted many businesses to include explicit rules prohibiting sexual harassment in company documents.
How Can I File a Sexual Harassment Complaint?
Before filing a complaint, employees should first try to address the issue with the offender if they feel safe doing so. If the behavior continues, the victim should document the incidents and inform their supervisor. If the behavior persists, the next step is to file a report with the human resources department.
If internal reporting does not resolve the issue, the victim can file a complaint with a government agency, such as the EEOC. The EEOC will investigate and can hold the employer responsible, potentially forcing them to change their company policies. Only after all these steps have been taken can the victim file a lawsuit, and they should consult an employment lawyer for advice on proceeding with their claim.
Are There Any Defenses for Claims of Sexual Harassment?
Several defenses may be asserted against a claim of sexual harassment. While these defenses may not necessarily dismiss the case, they can help reduce penalties. Some common defenses include:
- Providing evidence that the victim’s claims are false;
- Arguing that the conduct did not meet the legal standard for sexual harassment;
- Asserting that the victim did not follow the proper administrative route for filing a complaint (e.g., with the EEOC);
- Using the EEOC’s findings (or lack thereof) during their investigation as evidence against the claim; or
- Demonstrating that someone other than the defendant was responsible for the sexual harassment.
Employers should not retaliate against employees who file complaints; instead, they should cooperate with investigations and address wrongdoings. Apologizing for misconduct and explaining how policies will be improved can help resolve the situation.
Do I Need an Attorney If I Am Dealing with Sexual Harassment?
If you have experienced sexual harassment in the workplace and exhausted all administrative remedies, including filing a complaint with the EEOC, you should contact a sexual harassment attorney for further assistance. Remember, you must complete the initial steps before being allowed to sue. A lawyer can advise you on these steps and help build your case.
If you are an employer facing a sexual harassment lawsuit, you should consult with an employment lawyer immediately. They can guide you through the EEOC investigation process and help you navigate the next steps in defending yourself against the accusations.