Sexual Harassment

Illegal workplace harassment falls into one of two categories: quid pro quo (this for that) harassment or hostile work environment harassment. Quid pro quo harassment occurs when harassing conduct results in an intangible change in an employee’s employment status or benefits (becomes a condition of continued employment or leads to demotion, termination, lack of promotion opportunities.) In hostile work environment harassment, the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive.

Harassment is often difficult to define, as many actions in the workplace tread the fine line of harassment. In general, conduct is not illegal if it only consists of offhand comments, annoyances, jokes, or petty slights not intended to severely injure an individual; however, slurs, assaults, threats, ridicule, insensitive display of pictures and offensive jokes may be considered harassment should they interfere with the work performance of a reasonable person. Harassment is typically a series of repeated acts; however, isolated incidents may also fall under the umbrella of harassment if the behavior is particularly egregious or offensive.

In addition, a number of harassment cases violate state and federal anti-discrimination laws. These are forms of harassment due to someone's sex, race, national origin, religion, sexual preference, age, disability, transgender identity, or marital status.

Undesirable sexual advances, demands for sexual favors, and other oral or bodily conduct with a sexual connotation are considered sexual harassment when:

• A person's employment is overtly affected
• An employee's workflow is unjustly interrupted
• A taunting, antagonistic, and offensive work environment is created

Hostile Work Environment

A hostile work environment is one form of harassment in the workplace, where conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. A hostile work environment is also frequently referred to as an intimidating work environment, offensive work environment, abusive work environment, or hostile workplace. The person responsible for creating such a threatening atmosphere could be an employee (such as a boss or coworker) or even a non-employee (such as a customer or independent contractor). Offensive conduct may entitle the victim to legal recourse through a harassment lawsuit against the employer or another employee.

Sexual Harassment that Creates a Hostile Work Environment

Examples of sexual harassment that can contribute to a hostile work environment include:

• Gawking at someone in a sexually suggestive manner.
• Making rude comments regarding appearance (i.e. clothes, body parts).
• Contact that could make an employee feeling awkward (i.e. patting, pinching, or intentionally rubbing up against someone).
• Telling sexual or vulgar jokes, hanging lewd pictures, and making sexual gestures.
• Sending, forwarding, or requesting letters, notes, email, or images with sexual connotations.

Non-Sexual Harassment that Creates a Hostile Work Environment

Additional examples of non-sexual harassment that can lead to a hostile work environment include:

• Using disparaging words, phrases, and epithets in regards to race.
• Demonstrations poking fun at a certain race or ethnicity (i.e. gesture, picture, drawing).
• Commenting on someone's skin color or other inherent traits
• Making non-sexual derisive remarks about someone's gender.
• Teasing an employee about their religious beliefs or lack thereof
• Making prejudicial statements about an employee's birthplace or family heritage.
• Negatively commenting on the age of an employee who is at least 40 years old.
• Belittling allusions to an employee's mental or physical disability.

There are three major forms of harassment: verbal, nonverbal, and physical.

Verbal Harassment

• Sexual or suggestive comments
• Poking fun at someone Imitating the way someone speaks
• Sexual propositions
• Obscene telephone calls or broadcasts over the two-way radio
• Offensive jokes Repeatedly prodding about someone's personal life
• Threats or insults
• Inappropriate language in the workplace

Nonverbal Harassment

• Hanging material on the wall that is offensive or contains sexual innuendos
• Suggestive gazes or sneers
• Practical jokes Impersonating someone with a disability
• Following someone
• Sabotaging someone's work by denying them access to information
• Offensive bodily gestures
• Encouraging a coworker to speak crassly about or harass someone in the office
• Mandating that women perform domestic tasks around office (i.e. cleaning up after meetings)

Physical Harassment

• Gratuitous physical contact against someone's will (i.e. pinching, brushing up against, hugging)
• Sexual assault (i.e. attempting to touch someone's breasts or genitals)
• Pushing, shoving, or jostling. Placing your hand or object into someone's pocket

Some behaviors may be difficult to ascertain whether they are acceptable or illegal harassment. When there is mutual consent on the part of two adults, and the behavior is not offending any of their coworkers, it is acceptable. For example, when a supervisor conducts a performance evaluation with a subordinate, it is not viewed as harassment unless the feedback is not truthful or inappropriate behavior occurs during the assessment.

There are numerous situations in which sexual harassment occurs, some of which may be overlooked:

• The victim and harasser can be a woman or a man. They can be of the same sex as well.
• The harasser may be the victim's boss, an agent of the employer, a manager in another department, a coworker, or someone who is not even employed by the same organization. Clients and customers can also be sued for sexual harassment.
• The victim does not have to be the direct target of the harassment; the victim could be anyone who is offended by the behavior.
• Sexual harassment can occur without the victim experiencing any financial effects or losing their job; it can also occur when it creates an inhospitable work environment.
• The offensive comments need not be explicitly sexual in nature; they can include general offensive comments about a person’s sex.
• The harasser's actions must be unacceptable. There is no victim if the person in question feeds into the harasser's behavior.

An employer can be liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that:

• It reasonably tried to prevent and promptly correct the harassing behavior;
• And the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

In addition, an employer may be held liable for harassment by regular employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew, or should have known about the harassment and failed to take prompt and appropriate corrective action.

As the personal testimony and limited recollection by the subject of harassment is sometimes not enough to prove that the events in question actually occurred, it is important for these individuals to keep detailed records related to the harassment. Any material that could help corroborate a claim or aid in providing detailed explanations of what occurred can prove valuable in putting together a quality complaint.

One of the most useful practices in proving that harassment occurred is to take notes or diary entries that explain the circumstances of each event in detail. Some of the important aspects of such notes include:

• What happened
• When it happened
• Who was involved
• Where it happened
• Witnesses
• How you initially reacted

Any actions taken by the employee being harassed in an effort to stop or correct the problem will be useful in proving later that harassment did, in fact, occur. If you believe you are a victim of harassment, it may be useful to take these initial steps to attempt to resolve the problem:

• Ask the person to stop, and let them know that their actions are making you uncomfortable and violate the code of conduct.
• Keep detailed documentation of all events that you deem as harassment.
• If the behavior does not end, notify your supervisor and begin the grievance process outlined in your employee handbook.

If the conduct is particularly outrageous or does not stop after confronting the harasser, the employee should report their complaints to superiors. This action gives the company or organization the opportunity to conduct their own investigation, and also serves to solidify the employee’s complaint formally. If the company does not take corrective action or conduct persists anyway, the victim may have a chance to prove in a lawsuit that harassment occurred and that the employer should also be held liable. Employees should first report harassment to:

• Supervisor
• Manager
• Other grievance handler (i.e. human resources manager) or union
• Anti-Discrimination Board

Management is responsible for making sure the alleged harassment victim and any witness do not experience a backlash in response to coming forward.

Finally, employees alleging workplace harassment must file an administrative complaint with the Equal Employment Opportunity Commission (EEOC) or relevant state agency. The organization under which the complaint is filed will then investigate and determine your legal rights. They may conduct the entire discovery process and determine a legal remedy themselves, or hand over to the employee the right to sue for harassing conduct. These intermediate forms of remedy may be simplified with a skilled and experienced labor and employment attorney. A harassment lawyer will be able to create and collect the necessary documentation and evidence, notify the proper authorities and present a strong case to receive compensation for harassing conduct.

Under Title VII, it is illegal for an employer or other employee to retaliate against any individual who:

• Disagrees with employers that discriminate based on sex, gender, race, religion or any other protected class
• Files a discrimination charge
• Offers testimony or partakes in an investigation or court proceeding

Employees should not fear reporting harassing conduct, as employers are prohibited against retaliating against any individual that makes a report of harassment to the EEOC. If the EEOC agrees with the merits of the harassment claim, the subject of the illegal conduct may be able to receive compensation for back pay, employment reinstatement, promotion, and compensatory or punitive damages for certain conduct.

The sexual harassment attorneys at Morgan & Morgan have extensive experience investigating, preparing, and litigating employment sexual harassment claims. We have a proud history of providing compassionate advocacy for victims of workplace harassment, and dedicate ourselves to stopping the harassment and seeking full compensation for our clients. To find out if you may be eligible for legal recourse through a sexual harassment lawsuit, do not hesitate to fill out our free case review form.