What is sexual harassment in the workplace?
Over the years, we have represented a number of individuals who have been the victim of unwanted touching, pressure for sex or other degrading behavior based on gender. We have also represented businesses charged with allowing sexual harassment to occur. In each of these cases, the first step is to evaluate the conduct, determine the appropriate policies that the employer has in place and then map out a clear plan for addressing the situation.
The term “sexual harassment” refers to conduct based on gender that “interferes with a term or condition of your employment” or creates an intimidating, hostile or offensive work environment. It is important to recognize the men and women can both the victims of unwanted harassment in the workplace and the law protects both equally. Some examples of sexual harassment:
- Quid pro quo (demands for sexual favors to keep your job or get special treatment)
- Unwelcome advances or stalking
- Sexual assault or sexual touching (groping, hugging, caressing)
- Leering behavior or comments about your body
- Sexually suggestive or sexually explicit language
- Exposure to sexually explicit jokes, e-mails or pornography
- Non-sexual conduct based on your gender (derogatory comments about women, threats or physical assault)
What comes next?
If you are an individual and you feel that you have been a victim of harassment at work, the first step is to report that harassment to the employer. In this instance, you absolutely cannot be shy about the report. If there is no report, or if the report is not sufficient to put the employer on notice as to what happened, you may have wasted the best opportunity to resolve the situation. This means that you may have to graphically describe what happened and you most assuredly have to use the words “sexual harassment” in your report.
When you report sexual harassment, your employer is obligated to take “prompt and appropriate” legal action to end the harassment. This is where the employer must take some action and, if you are business owner, you need to immediately get an attorney involved. If the company takes no steps to investigate or end the harassment (or if the company does not have an anti-harassment policy), there may be no defense to a subsequent lawsuit.
What is an “appropriate” action to end the harassment?
Once the report of harassment is made, the employer is obligated to take “prompt and appropriate” action to end the harassment. However, many people have questions as to what is appropriate action to take in order to end the harassment. In these situations, the law is typically going to give employers a wide amount latitude to determine what is appropriate. As a statement of law, it need only be “reasonably calculated to end the harassment.” Practically, this means that the employer’s actions can take a wide variety of forms. For example, the action can take the form of some sort of discipline such as a termination, suspension or write-up. It can also take a nondisciplinary form, such as a counseling session. It can also take the form of a structural change to the workplace. Some examples of this are changed work locations or changed reporting requirements. If that is the course, it should never involve moving the complaining employee to either a less desirable work location or job assignment.
A final thought on this point. In the area of appropriate remedy, the employer is not under any obligation to tell the complaining employee exactly what the remedy was. If it is structural, that will be self-apparent. If it is anything else, that is not apparent and need not be disclosed. A wise employer will at a minimum let the employee know that something was done to end the harassment and will take steps to proactively monitor the situation for possible retaliation or further harassment.
What sort of recovery can a victim of harassment receive?
For many victims, the harassment has been ongoing and traumatic to the point of missing work or wanting to quit. A lawsuit for damages can seek lost wages (back pay and front pay), as well as damages for the emotional impact and costs of counseling or medical care. If the harassment was severe, if there is a pattern of similar claims, or you suffered retaliation for reporting it, punitive damages may also apply.
Obtaining any amount of compensation — through either a settlement or at trial — depends on a lot of factors. Some of these are apparent. The egregiousness of the conduct and the strength of the evidence are a couple of the more apparent ones. In the best scenario, there are co-workers or others who witnessed the conduct. Voicemail messages or e-mail harassment can also make a good case. However, other factors include whether the employee has quit or is still working in the environment and the strength of the employer’s response to the harassment complaint.
If you have further questions, please do not hesitate to contact us for an initial consultation.