Sexual Harassment

Sexual harassment in the workplace is a specific kind of employment discrimination. It occurs when someone at your workplace, such as a supervisor or coworker, says or does something to make an employee feel uncomfortable or intimidated.

This article includes a brief history and summary of sexual harassment in the workplace and the legal rights of its victims to seek justice through the state or federal court system.

History of Sexual Harassment in the Workplace

Unfortunately, sexual harassment in the workplace is not a recent phenomenon. Sexual harassment has a long and sordid history in the American workplace. It wasn’t until Title VII of the Civil Rights Act of 1969 that discrimination based on “gender” was made unlawful. By extension, beginning in the 1980s, courts held that sexual harassment in the workplace was a form of unlawful discrimination prohibited by Title VII of the Civil Rights Act. These rulings gave victims of sexual harassment the right to sue for damages.

Two Types of Workplace Sexual Harassment

As case law continued to develop in sexual harassment cases, courts formulated two distinct workplace sexual harassment claims, sexual harassment based on a hostile workplace and sexual harassment based on quid pro quo.

Quid Pro Quo Sexual Harassment

A quid pro quo sexual harassment claim is when a superior insinuates or expressly demands sexual contact from an employee in return for continued employment. As an enticement, the superior may offer the employee favorable treatment at work, such as better pay or a promotion.

In reality, exchanging sexual contact for continued employment is a form of coercion. The employee subjectively believes she must submit to the superior’s demands or risk losing the job.

Hostile Workplace Sexual Harassment

A hostile workplace sexual harassment claim is when the employee is regularly exposed to and becomes a target of other coworkers’ sexually-charged and offensive conduct—including disparaging and sexually charged remarks, being asked out on dates, lewd gestures, unwelcome touching, offensive jokes, displaying sexually suggestive photos or drawings. ​

Sexual harassment usually occurs when a severely hostile work environment involves pervasive unwelcome sexual conduct. It comes in many forms. It might involve sexually-charged posters or flyers that make fun of women, comments about a person’s body or sexuality, or actual sexual assault.

Let’s look at some other examples of hostile workplace sexual harassment:

• Dirty Jokes: If a co-employee once told a worker a “dirty” joke, that is probably not sexual harassment because it happened only once. To prove that the worker was in a hostile environment, the worker must show that the conduct was “severe or pervasive.” In other words, the behavior had to be pretty bad or had happened many times.
• Rejected Suitors: It is not sexual harassment for a supervisor to ask a subordinate for a date. Still, if the worker turns the supervisor down and gets punished for the rejection – by getting fired, transferred, or denied a promotion, etc. – this is probably sexual harassment.
• Touching: Suppose a supervisor or a co-employee touches a worker in a casual way, such as a pat on the back or a congratulatory hug. That is probably not sexual harassment as long as it is not “unwelcome.” However, if an employee is offended by such casual touching, the employee should notify the “toucher” immediately, and if such touching continues, it might be considered illegal harassment.

How Employers Defended Against Sexual Harassment Lawsuits

Given that Title VII of the Civil Rights Act gave victims of sexual harassment the legal right to sue their employers for damages, employers discovered that juries could be convinced to award large judgments in favor of victims.

Types of Damages Awarded To Plaintiffs Including:

Lost income and benefits

If applicable, back pay can include lost income, healthcare benefits, contributions to retirement plans, vacation pay, and paid time off. Under most state jurisdictions, the plaintiff is allowed to recover back compensation measured from when the legal claim began until the court entered the final judgment.

Emotional distress

Emotional distress damages can arise from stress, anxiety, depression, and even post-traumatic stress disorder. Compensation is also allowed for loss of enjoyment of life and emotional anguish, panic, and difficulty sleeping, as well as the resulting costs associated with the treatment of such conditions.

Punitive damage awards

Under specific circumstances, if there is a finding that the employer engaged in malicious conduct or with reckless indifference to the victims’ rights, safety, and welfare, the court may allow an award of punitive damages which is not covered by employer liability insurance.

Punitive damage awards are not only meant to make the plaintiff whole but more to punish the defendant and deter other employers from engaging in similar conduct in the future.

An award for punitive damages also serves a symbolic purpose: to deter and dissuade other potential offenders from engaging in similar behavior.

Plaintiffs Awarded Large Jury Verdicts Against Employers

Workplace sexual harassment lawsuits became more common, as did many jury verdicts in favor of employees. Employers and their insurance companies continually had to pay large sums of money in court judgments, including seven-figure awards for punitive damages.

Employers have become desperate to minimize their legal and financial exposure from expensive court battles and what employers consider runaway plaintiffs’ verdicts.

In response, employers began requiring employees to sign employment contracts containing compulsory binding arbitration clauses that mandated sexual harassment and discrimination disputes be resolved exclusively through private arbitration services selected by the employer.

Compulsory Arbitration Clauses

Compulsory arbitration clauses require employees to resolve all legal claims, specifically sexual harassment claims, exclusively through binding arbitration rather than the public court system. As expected, binding arbitration reduced the value of employee claims and prevented those claims from going public.

Employers tried to justify compulsory arbitration clauses by claiming that the employer and the employee had the legal right to freely negotiate employment terms. Employers argued that if the employee opposed a compulsory arbitration, the employee did not have to accept employment with the company.

Employers defended their right to use alternative dispute resolution services and praised their efficiency, informality, flexibility, affordability, and for its finality. Especially for its finality since there was no appeal from an arbitration decision.

For nearly three decades, through the use of compulsory arbitration clauses, employers have prevented employees from accessing courts of law and having their matters heard in public and before a jury.

Over time, it became clear that compulsory arbitration clauses resulted in an unfair and uneven playing field that favored large employers. Social justice and employee rights advocates protested that the private and confidential employment arbitration system favored big business and evaded public scrutiny and accountability for large employers.

Congress Finally Ends Compulsory Arbitration Law

Due to an onslaught of public pressure on lawmakers, Congress finally ended compulsory arbitration clauses. In February 2022, the Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed into law.

But the fight against sexual harassment in the workplace continues.

How To Respond If You Are Sexually Harassed At Work

Retain a lawyer as soon as possible

While employees of sexual harassment have regained their right to litigate their case in court fully, the employee must still comply with the laws. For this reason, it is strongly advised that the employee consults with an experienced sexual harassment attorney as soon as possible. The earlier, the better.

The attorney will guide you through the process of reporting and documenting harassment to your employer, as well as counsel you on how to preserve your legal rights, such as court filing deadlines and how to receive a right-to-sue letter from the EEOC. The following are the most immediate actions to take.

Follow the company’s policy and procedures manual

Check the company policy manual to see if there is a sexual harassment reporting procedure. You will want to follow it as part of your own due diligence. Make sure you copy the pertinent sections of the company policy manual for your records.

Tell the harasser to stop

Most experienced sexual harassment lawyers will advise their clients to confront the offender and demand that the harassment stop. If possible, make it clear such behavior is offensive, unacceptable, and unwelcome.

Report harassment to management

It is advisable to immediately report the harassment to the company by respectfully requesting that management stop the harassment. Make sure to report the incident to a company supervisor or manager. You want to ensure that the person you report this to has the authority to stop the behavior.

Document and detail all events

It is critical to document all incidents of harassment and include them in a written complaint to the company. If you have an attorney at this time, make sure you consult with her before you submit anything in writing to your employer.

Be specific, especially regarding time, place, and date. Fully identify the offender and include any witnesses who directly know the offender and his actions.

It is best to send the complaint to the highest official in the company. This person will usually be the company’s owner, president, or officer. Use an e-mail address and mark the subject line urgent and confidential. Keep a copy of the complaint in your files.

Your Employer Will Investigate Your Claims

Remember that the employer must be allowed to investigate the matter before taking any material action. The law requires companies to stop harassment quickly and ensure offensive action is not repeated.

Once you have documented and reported the harassment, the responsibility will shift to the employer to follow the law, which requires them to perform a prompt and thorough investigation. However, don’t be discouraged if the harasser is not immediately terminated. An investigation will take time, and the harasser is entitled to tell his part of the story.

Cooperate with the company’s investigation of the matter. It is best not to discuss the incident or the investigation with coworkers. Coworkers are potential witnesses. If coworkers ask you about the incident or the company investigation, inform them you were asked not to discuss it.

Employer Prohibited From Taking Adverse Action Against You

Even if the employer does not terminate the offender, the company is strictly prohibited from taking any adverse action against you in retaliation for reporting the harassment.

This includes suspending or reassigning you to another position, changing your schedule, or assigning you to a different location. Should your employer terminate your employment, you can sue under the legal theory of retaliatory termination.

Actual Termination and Constructive Termination

If your employer terminates you for making a sexual harassment claim, the employer can be sued separately for retaliatory termination. Another way of retaliating against the employee is to make the employee so miserable that the employee has no alternative other than to quit the job.

Examples of constructive termination include:

• Limiting the employee’s job responsibilities
• Ignoring the employee’s presence
• Not inviting the employee to important staff meetings
• Excluding the employee from valuable training sessions
• Giving negative performance evaluations
• Denying the employee overtime hours
• Assigning the employee to unfavorable work schedules.

Sexual Harassment Cases Often Include Other Violations

Depending on the facts, the case could include separate causes of action for assault and battery, equal pay, employee privacy violations, medical and family leave violations, and violations of whistleblower protections.

Employment Lawyers

Should you have specific questions or require additional information about your legal rights and obligations, we strongly advise you to consult a verified online Employment Lawyer about your issues as soon as possible.