Sexual harassment in the workplace occurs when someone directs unwanted sexual conduct or contact towards a coworker. This type of behavior creates a work environment that is hostile and offensive and is prohibited under federal laws (including Title VII of the Civil Rights Act of 1964) and state laws.
Examples of sexual harassment include asking a colleague for sexual favors in return for a job promotion or keeping their job (sometimes called quid pro quo harassment) or creating a hostile work environment in other ways, such as by making inappropriate jokes, touching someone in a sexual manner without permission, or sharing sexually suggestive material with colleagues.
You should document any incidents of sexual harassment at work and file a report with your human resource department and supervisor. If your employer fails to take the allegations seriously, you may file a discrimination claim with the Equal Employment Opportunity Commission (EEOC). The EEOC will look into the claim and determine next steps, which may include involving the parties in mediation or filing a lawsuit on your behalf.
You also can decide to file an individual lawsuit against the bad actor and/or employer to seek damages, such as money damages (including attorney’s fees) and punitive damages (if permitted by your state), or seek other relief, including reinstatement, termination, or policy changes.
You can have your reputation severely impaired if you have been accused of sexual harassment in the workplace. Also, you and your employer may be subject to serious legal consequences under federal and state laws. The EEOC may issue administrative charges and start an investigation into a claim for discrimination in the workplace.
In the first instance, take the allegations seriously when you are notified directly by a co-worker or indirectly by other employees, supervisors or human resource personnel. Start recording your interactions with the co-worker and write down everything you can recall from prior incidents. Ask the employer to identify what the steps will be taken by them to determine in good faith the facts of the allegations.
In other words, you are trying to determine your employer’s expertise in conducting such investigations in an objective and unbiased manner.
You may also wish to cooperate with any investigation undertaken by the company or the EEOC to determine whether the allegations against you can be substantiated. It is important that you identify any witnesses and provide any statements or documentations that may support the facts in your version of what occurred.
For example, if your accuser has previously made false claims, this information could be relevant to the investigations. The laws of your state will determine what records you are entitled to receive from the employer and the accused in helping you to defend yourself.
Consult with an attorney who can help you to respond to the allegations or help with mediation efforts by the company to resolve the issues without resorting to litigation. Consulting with your attorney can also help you to decide how best to respond if the investigation finds that you did sexually harass your colleague. This will also help in anticipating penalties, such as being required to issue an apology, termination, or participation in sensitivity training.
If an allegation is escalated outside of the employer to the EEOC or the accuse decides to file a lawsuit, as the accused you should be considering all defenses that may be available to you. Keep in mind also that the burden typically is on the accused to establish that they were sexually harassed by you.
The laws in your state will identify what defenses are available to you in a lawsuit against you for sexual harassment. Some potential sexual harassment defenses or mitigating factors include:
- Putting forth evidence showing that the claims are false;
- The conduct did not rise to the level of sexual harassment under the law;
- The accused failed to exhaust administrative protocols or remedies before filing a lawsuit;
- The employer’s investigation failed to establish an incident or pattern of conduct that was harassing;
- The EEOC concluded from its own investigation that the incident did not occur or there was insufficient basis on which to conclude the alleged behavior might have occurred; and/or
- The behavior alleged was perpetrated by someone else (i.e. the pornographic material belonged to someone else and was placed there by another bad actor).
Whether you are the victim of sexual harassment or have been accused of sexual harassment in the workplace, you may benefit from the advice of an employment lawyer. An attorney can work with you through each phase of the process and help you present the strongest evidence to support your claims or defenses, as the case may be.