It is not uncommon for people to grumble about having to return to work on Monday mornings after a weekend away. Some people are actually afraid of going to work, however, because they are being sexually harassed in the workplace. Such an experience can cause fear, guilt and confusion in the victim because he or she does not know what to do or what his or her options are. Not everyone understands his or her rights under sexual harassment laws. Common misconceptions include the belief that only women get sexually harassed, that harassment can only occur between people of opposite genders or that sexual harassment needs to be motivated by sexual attraction. None of these are true. Both men and women experience sexual harassment and it is possible for women to sexually harass women and men to sexually harass men – even if the harassment is not motivated by sexual attraction. In order for employees to best assert their rights, it is important to understand what the definition of sexual harassment is and what laws exist to protect them from suffering from sexual harassment and retaliation for reporting harassment in the workplace.
Definition of Sexual Harassment
Sexual harassment is a form of sex discrimination. The law defines sexual harassment as “unwelcome verbal, visual or physical conduct of a sexual nature that is severe or pervasive and affects working conditions or creates a hostile work environment.” It is important to understand each term in the definition and carefully assess whether an employee’s situation satisfies the criteria for that term if the employee is considering bringing a lawsuit.
- Unwelcome: In order for someone to be violating sexual harassment laws, the person needs to know that his or her conduct is unwelcome to the recipient. To ensure that there is no question on this matter, it is crucial for an employee who feels harassed to communicate to the harasser that his or her conduct is offensive.
- Conduct of a sexual nature: Conduct qualifying as sexual harassment can take many forms, including verbal actions such as sexual jokes, comments about a person’s body or repeated requests for dates; physical acts such as touching, hugging, kissing or patting another person; and visual acts such as displaying sexual posters, drawings or screensavers.
- Severe or pervasive: To prove that someone’s actions are sexual harassment, the law says the behavior in question needs to occur for a significant length of time or, if it is only one incident, be extremely severe – such as rape or attempted sexual assault.
- Affects working conditions or creates a hostile working environment: Conduct that results in a loss of a job or promotion is almost certainly sexual harassment. However, a person need not show a loss in position or potential for advancement in order to prove that another person was harassing him or her. If the actions of another make an employee so uncomfortable that he or she avoids certain duties or passes up opportunities specifically to avoid the person engaging in the conduct, it may constitute sexual harassment.
Types of Sexual Harassment
The Equal Employment Opportunity Commission recognizes two types of sexual harassment:
- Quid pro quo harassment: This type of harassment occurs when one employee offers professional advancement in exchange for sexual favors or threatens that an employee’s career will suffer if the employee does not engage in certain activities, such as dating or intercourse. An employer is not liable for the actions of an employee who engages in this type of behavior unless it knows or should have known of the behavior and fails to take measures to correct it. Therefore, it is vital for an employee who has been the victim of this type of harassment to report it so that the employer is on notice in case it happens again. An employee who has been the victim of this type of harassment may also show that the employer should have known of the harasser’s actions by proving that the harassment was so prevalent that there was no way that people in authority at the employer could not have known of it or point to a history of similar past acts on the harasser’s part.
- Hostile work environment harassment: This type of harassment occurs when a work environment is so permeated with sexual incidents, attitudes and behaviors that are intimidating or discriminatory that it makes it difficult for employees to work. This type of harassment is more common but more difficult to prove.
Sexual Harassment Laws
Both federal and state laws codify sexual harassment as illegal. Federally, sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act. This law imposes the responsibility of preventing or stopping sexual harassment in the workplace on private employers, most public employers, labor unions and employment agencies. The law requires employers to take reasonable steps both to prevent sexual harassment and to stop sexual harassment that the employer becomes aware of. Merely instituted a policy against sexual harassment may not be enough for an employer to prove that it took reasonable steps in the event that an employee brings a lawsuit, if the employer never enforced the policy or the employer never investigated complaints of harassment but investigated other sorts of complaints regarding employee misconduct.
In California, the Fair Employment and Housing Act (FEHA) also protects employees from sexual harassment. The FEHA, like Title VII, applies to private and public employers, labor unions and employment agencies. Additionally, the FEHA applies to state licensing boards, and state and local governments, as well contract employers.
The laws provide remedies for victims of sexual harassment. A harassed employee may bring a lawsuit for money damages, reinstatement of employment and/or an injunction forcing an employer to change its sexual harassment policies for the future. An employee first needs to file a complaint with the EEOC or the California Department of Fair Employment and Housing before filing a lawsuit, however. In California, an employee has 300 days from an act of harassment to file a complaint with the EEOC and one year from an act of harassment to file a complaint with the Department of Fair Employment and Housing.
Protections Against Retaliation
Not only do laws protect employees from sexual harassment, they also protect employees from retaliation after reporting sexual harassment. Examples of retaliation include firing or demoting the employee or giving the employee less desirable assignments. Additionally, laws protect employees involved in sexual harassment investigations so that any witness whom the harassed employee would like to use to support his or her claims of harassment will not suffer for reporting the behavior they witnessed.
Sexual harassment is illegal and victims of such treatment should understand that they have the right to a workplace free from such behavior. The law provides remedies for workers who have been harassed when the employer will not step in and take action against the harasser. If you have been sexually harassed in the workplace, do not hesitate to contact an experienced employment law attorney who can discuss your situation with you and advise you of your options.