Sexual Harassment in the Workplace

What Constitutes Unlawful Sexual Harassment | Your Legal Rights

Though public awareness of the continued presence and harmful impact of sexual harassment in the workplace has heightened over the last decade, the prevalence of such conduct has not diminished significantly. It remains a tool too frequently used by those in roles of authority or power to prey on their subordinates.

What Is Sexual Harassment?

The Equal Employment Opportunity Commission (EEOC) is the government agency that investigates and imposes sanctions against companies that permit or engage in sexual harassment. The EEOC defines sexual harassment as a group of behaviors, including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Those behaviors may include, but are not limited to:

• Actual or attempted sexual assault, including rape, groping, kissing, touching, or fondling
• Intimidating acts of a sexual nature, such as cornering, pinching or coming in close proximity to another person
• Unwelcome or unwanted phone calls, emails, text messages, or letters of a sexual nature
• Unwanted pressure for sex or sexual favors
• Unwelcome looks or gestures of a sexual nature

A definition of sexual harassment specific to the workplace is unwelcome conduct or behavior that either (a) has the potential to adversely or positively affect an aspect of the victim’s employment or (b) makes the work environment intolerable because of persistent and inappropriate focus on sexual matters. To be considered “unwelcome,” the conduct engaged in by the victim need not be involuntary. A person subjected to sexual harassment in the workplace may allow it to happen but still find it offensive or objectionable.

The Types of Workplace Sexual Harassment

Workplace sexual harassment generally falls into two distinct categories:

• quid pro quo sexual harassment, and
• the creation of a hostile work environment based on sex.

What Is Quid Pro Quo Sexual Harassment?

From the Latin for “this for that,” quid pro quo sexual harassment involves an exchange. It may be an offer of a job-related benefit for some type of sexual favor, or it may be a threat of an adverse employment action for failure to engage in sex. For quid pro quo sexual harassment to exist, the person committing the wrongful acts must have the authority or be in a position to negatively or positively control the victim’s employment. Typically, that’s a manager, boss, or supervisor. The promise or threat may involve any aspect of a person’s employment, including hiring, termination, promotion, job assignments, authorization of a pay raise, access to career enhancement or training opportunities, or availability of benefits.

What Is the Creation of a Hostile Environment Based on Sex?

A hostile work environment exists when there are repeated acts that involve sexual references or behaviors. Whereas quid pro quo sexual harassment requires acts by a person in authority, a hostile environment can exist due to behavior by co-workers, customers, vendors, suppliers, and others.

A hostile environment is generally found only where a pattern of inappropriate behavior can be shown, and where persons with authority are informed of the situation but take inadequate steps, if any, to discourage or prevent the behavior. A wide range of behaviors may be deemed sufficient to create a hostile environment, including:

• Persistent and unwanted requests for dates or sexual favors
• Verbal references to sex, including jokes, questions, comments, innuendoes, or stories
• Persistent comments about a person’s physical appearance
• Catcalls, kissing sounds, growling, howling, or smacking of lips
• Use of pejorative terms to refer to other workers, such as “babe,” “doll,” “honey,” or “sweetie”
• Emails, text messages, screensavers, posted pictures, or other visual displays with a sexual tone
• Unwanted and persistent gifts

An Individual’s Rights to Be Free of Workplace Sexual Harassment

Sexual harassment is a form of workplace discrimination prohibited by the Civil Rights Act of 1964. Title VII of the Civil Rights Act covers companies with more than 15 employees but does not govern independent contractors or people who are self-employed. You may have a claim for sexual harassment without being the direct victim of wrongful conduct if you can show that you witnessed offensive conduct in the workplace. Furthermore, an employer may not engage in any retaliatory conduct against anyone who files a sexual harassment claim or participates in any way in the investigation or prosecution of a sexual harassment claim.

Liability for Workplace Sexual Harassment

A person can be liable for quid pro quo sexual harassment only if they had authority or control over the conditions of the victim’s employment. A company can be liable for quid pro quo sexual harassment only if the person committing the harassment owned or controlled the company, or if those with such control knew or should have known of the existence of the sexual harassment and failed to do anything to stop it.

With claims involving allegations of a hostile work environment, the parties within the company who condoned the conduct can potentially be liable, as can the company itself.

Steps to Take If You Experience Sexual Harassment in the Workplace

If you find yourself the victim of sexual harassment in the workplace, there are a number of responses you should consider:

• If you feel safe confronting the person who engaged in the wrongful behavior, do so immediately. Clearly express your disapproval and request that all inappropriate conduct cease.
• Document every instance of wrongful conduct. Keep a diary with dates, times, and other details. Include the names of anyone who witnessed the behavior.
• Report any wrongful acts to a supervisor. With quid pro quo sexual harassment, you’ll want to notify someone with authority over the person harassing you. When a hostile environment exists, you need to communicate to the person in charge of the environment, or to someone with authority over them.
• If the hostile environment continues, or if you are still subject to quid pro quo harassment, contact the nearest EEOC or Fair Employment Practices Agency (FEPA) office. When you file a complaint, the EEOC will investigate and determine whether there’s sufficient evidence to warrant sanctions against your employer. If the EEOC finds inadequate evidence of sexual harassment, it will issue a “right to sue” letter, allowing you to bring a lawsuit if court.

Mandatory Workplace Training

Though only a handful of states have enacted laws requiring sexual harassment training in the workplace, guidelines issued by the EEOC, as well as decisions in the federal courts, encourage employers in all states to provide sexual harassment prevention training to all employees. The EEOC has stated that such training should be “conducted and reinforced on a regular basis.” The United States Supreme Court has ruled that employers will minimize the risk of punitive damages in a sexual harassment lawsuit if they can show “good faith efforts” to provide such training.

Remedies Available in Sexual Harassment Claims

The Civil Rights Act of 1964 provides remedies in federal court for claims of sexual harassment in the workplace. In addition, many states have their own statutes providing some form of relief for workplace sexual harassment.

If you litigate your claim in court, you need not show physical injuries in order to recover damages; emotional injuries are sufficient. If your suit succeeds, your remedies may include:

• Reinstatement, if you lost your job;
• Back pay (multiplied by three), if you lost money or missed out on a raise;
• Fringe benefits lost;
• Damages for emotional distress;
• A requirement that your employer initiate policies or training to stop harassment; and
• Your attorney’s fees and court costs.

Federal law limits compensatory damages to $300,000 for companies with 500 employees or more. The limit is lower for smaller companies.