Sexual harassment is a major problem in the workplace. Due to the nature of sexual harassment, it is critical to have the support of a caring, experienced attorney who understands the difficulties and emotional distress experienced by victims of sexual harassment. We have substantial experience in successfully representing clients who have endured sexual harassment at the workplace.
There are generally two types of claims which may occur when an employee is the subject of sexual harassment in the workplace: Quid Pro Quo and Hostile Environment. The difference between these two types of sexual harassment is not always clear and in many instances, both forms can occur simultaneously.
Quid Pro Quo Sexual Harassment
Quid pro quo is a Latin term which means “this for that.” In the context of the workplace and sexual harassment the term means that a job benefit is connected to an employee submitting to unwelcome sexual advances. In these cases the person who engages in sexual harassment is a person in authority such as a manager and the victim is in a subordinate position. A typical example would be where a manager offers an employee a promotion or a raise in exchange for sexual favors. This type of sexual harassment can also occur when an employee resists sexual advances and suffers or is threatened with harm such as a demotion or termination of employment. The fact that an employee may have given in to a superior’s demands does not mean there is no sexual harassment case; the key is that the sexual advances are unwanted.
Hostile Environment Sexual Harassment
Hostile environment sexual harassment occurs when the working environment is made hostile because of its sexual nature. An employee may have a claim for hostile environment sexual harassment if the working environment is made intolerable by photographs, comments, jokes, or other acts of an offensive sexual nature, including physical touching or attempted rape. In order to establish what the law calls a prima facie case of a sexually hostile work environment, an employee plaintiff must show: (1) the employee suffered intentional discrimination because of sex, ( 2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the employee plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position, and (5) there is a legal basis for the employer to be liable for the sexual harassment (existence of what the law calls respondent superior liability)
Sexual harassment at the workplace usually involves repeated conduct over a period of time and does not typically occur on a single day or in one act of harassment, standing alone. Due to the nature of sexual harassment claims, courts recognize what has become known as the "continuing violation doctrine" in order to permit plaintiff employees to present evidence of what occurred over the entire period the employee was exposed to sexual harassment, even where some of the events occurred more than 300 days from the time in which the employee plaintiff filed a Charge of discrimination with the EEOC. Thus, the law provides that as long as one act contributing to the sexual harassment occurs within the 300 day filing period, the entire time period of the sexually hostile environment may be considered.
To establish a persistent on-going pattern of a sexually hostile work environment an employee plaintiff must show: (1) that the acts constitute the same type of conduct, (2) the acts occurred frequently, and (3) whether the consequences of the acts were permanent enough that they would trigger the employee plaintiff's awareness of the employees' duty to assert rights. Evidence that employees other than the plaintiff employee were also subjected to a sexually hostile work environment can be presented as evidence in many situations.
An employer is not always automatically liable for sexual harassment by another employee. An employer is subject to liability for a sexually hostile work environment created by a supervisor with immediate or successively higher authority over the employee. However, in a situation where there is no adverse employment action taken against the employee, an employer may avoid liability if the employer can prove that the employer exercised reasonable care to prevent and promptly correct sexually harassing behavior, and the employee plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities provided by the employer. For example, if the employer has a written complaint procedure which requires an employee to report sexual harassment and the employee fails to report the same and no action is taken by the employer against the employee who was exposed to sexual harassment, the employer may have a basis for avoiding liability.
Sexual Harassment and Retaliation
Employees often fear that employers will retaliate against them for complaints of sexual harassment. The law protects employees and provides that any employer who retaliates against an employee for a good faith report of sexual harassment has a cause of action for retaliation. Because retaliation can be dangerous, employers tend to treat complaints of sexual harassment carefully. Any retaliation by a supervisor should also be immediately reported to management. If you experience any retaliation for reporting sexual harassment you should immediately contact an attorney.
Sexual harassment and retaliation are serious. No one should have to work in such an environment. If you are being subjected to sexual harassment you need to take the proper action.
We represent employees who have been subjected to sexual harassment and sexually hostile work environment. Call us today at 267-470-4742 or contact us online to discuss your legal options.