Sexual harassment refers to the unwanted sexual advances or conduct, or other verbal or physical actions of a sexual nature. Sexual harassment in the workplace is a form of employment discrimination and runs counter to providing employees with a safe workplace.
It can occur between someone in a position of authority and an employee, or between coworkers. Sexual harassment in the workplace can be classified in the following ways:
- Direct Sexual Conduct By an Employer: This occurs when an employer makes overt sexual remarks or advances towards an employee. This is an obvious and commonly referenced form of sexual harassment in the workplace.
- Quid Pro Quo Sexual Harassment: This includes not only direct verbal requests for sexual favors, but also non-verbal communication and physical conduct. Quid pro quo sexual harassment occurs when a supervisor or other person of higher rank makes retaining a job or receiving some type of workplace benefit contingent upon performing sexual favors. Quid Pro Quo harassment also includes withholding benefits and altering an employee’s evaluation.
- Hostile Work Environment Sexual Harassment: Hostile work environments, another type of sexual harassment in the workplace, are created when anyone in the workplace engages in harassment that makes it impossible for an employee to perform their job and related duties.
- This is a work environment in which an employee is subjected to severe or pervasive verbal or physical sexual behavior.
- Sexual Harassment Based on Gender Stereotypes: This situation typically involves an employer, coworker, or supervisor harassing an employee who does not conform to the stereotypes assigned to their assumed gender.
- It is absolutely illegal to harass an employee simply because they do not conform to a typical stereotype, just as it is illegal to harass an employee because of their gender and how they conform to those stereotypes.
- Disparate Treatment Sexual Discrimination: It is important to remember that discrimination based on sex is considered to be a form of workplace sexual harassment. As such, an employer intentionally and overtly treating one individual or group of individuals differently from another based solely on their gender is known as disparate treatment sex discrimination.
- An example of this would be requiring all female employees to take and pass a grammar exam in order to be considered for a promotion, while not requiring that all male employees do the same.
Some of the most common examples of sexual harassment in the workplace include:
- Comments or “jokes” about a person’s body or physical appearance;
- “Jokes” of a sexual nature;
- Requests for dates or sexual favors;
- Spreading rumors about or discussing a person’s sex life;
- Touching another person’s body without their clear and emphatic consent; and
- Sending pictures or emails of a sexual nature to each other.
There are laws at both the federal and state levels that prohibit employment harassment on the basis of sex or gender. Additionally, the federal government and individual states alike have created agencies that investigate harassment claims while enforcing laws that prohibit sexual harassment, especially in the workplace.
The U.S. Equal Employment Opportunity Commission, also known as the “EEOC,” enforces workplace sexual discrimination harassment laws on the federal level. They do this through the investigation of workplace discrimination claims.
Generally, in order to file a discrimination or harassment claim in court, you must first file a claim with the EEOC within 180 days of the conduct. On the state level, many states have their own laws in place to regulate workplace sexual harassment, as well as harassment of a criminal nature.
Additionally, there are state level agencies that enforce these laws. It may be required to first file a claim with a state agency before bringing a lawsuit to court, and deadlines for filing such claims will vary from state to state.
Employers are prohibited from retaliating against employees who have reported sexual harassment. This means employers may not take any negative employment actions, including demotions, decreasing pay, termination, and restricting benefits.
This is because reporting harassment, as well as participating in any sexual harassment investigation, is considered to be a protected activity. Employees are protected by the federal law when participating in protected activities.
Sexual harassment laws are intended to protect all employees from being sexually harassed by all other employees, as well as employers and supervisors. This includes harassment by the opposite or same sex.
Sexual harassment by a member of the same sex is sometimes attributed to the harasser’s belief that the person they are harassing does not conform to their assumed gender stereotype, but sexual harassment does not need to be sexually motivated in order to be legitimate. All sexual harassment is illegal.
Unfortunately, filing a workplace sexual harassment complaint is not simple. First, you must review your company’s policy regarding sexual harassment claims. Employers are typically required to post their policies regarding sexual harassment in the workplace, and their policies should include:
- To whom the employee should report sexual harassment;
- The procedures for the employer’s investigation of the claim; and
- Corrective measures when the claim has been confirmed.
Importantly, your employer’s procedure should make it so you are able to make a complaint through your company’s human resources department. Should that fail, or if you have exhausted every administrative avenue available to you, you should file a claim with a government agency such as the EEOC.
Once that complaint has been filed, the agency will investigate your claim and take action with your employer, if they find fit to do so. If that still does not resolve the problem, or if the EEOC does not take action against your employer, then you may then file a civil lawsuit once you obtained a “Right to Sue Letter.” This will require you to provide evidence supporting your claim, which could include written statements or witness testimony.
As previously mentioned, most state laws dictate that you exhaust all administrative remedies available to you before taking any other action, specifically before you can file a lawsuit.
A well qualified and knowledgeable employment attorney can help you through the difficult process of proving a workplace sexual harassment claim. Additionally, an experienced employment law attorney can ensure that you meet all necessary filing deadlines, assist in gathering and presenting evidence, and educate you on your state’s specific laws regarding the matter. Finally, they can represent you in court as needed.