SEXUAL HARASSMENT/MISCONDUCT (PART 1)

Over the past several days, over 35 cases of sexual misconduct involving high-profile individuals such as Donald Trump with over 13 allegations, Harvey Weinstein, Kevin Spacey, Al Franken, John Conyers, Matt Lauer, Ben Affleck, George H.W. Bush, Charlie Rose, and, of course, Roy Moore have been reported. Aside from Trump’s appalling behavior where he admits to grabbing women by the p_ _ _y, Alabama Senate candidate Roy Moore is probably the most despicable.  In fact, some have labeled him as a Pedophile resulting from his improper pursuit of a 14 year old girl when Moore was in his 30s. What I and others are having considerable difficulty in understanding is that so-called “Christians” and “Evangelicals” continue to support Trump and Moore in spite of their behavior. Kay Ellen Ivey, the Governor of Alabama, and other Moore supporters, would prefer that a “Pedophile” be in the Senate rather than any “liberal.” I wonder how she and the rest of the Roy supporters would have reacted if that 14 year old was their daughter or grand-daughter. Unlike Franken and Conyers, the allegations against Trump and Moore specifically include sexual assault.

According to the United States Department of Justice, sexual assault is “any type of sexual contact or behavior that occurs without the explicit consent of the recipient.” Sexual assault is basically an umbrella term that includes sexual activities such as rape, fondling, and attempted rape. However, the legal definition varies depending on the state, and can even be different depending on where you were when the assault happened.  For example, sexual assault on college campuses in California means a sex act that occurred without affirmative consent (which is described as active, voluntary participation), while California criminal law defines rape as nonconsensual sexual intercourse, and other laws govern different forms of sexual assault beyond intercourse.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, as well as to the federal government.  Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

What is sexual harassment?  Sexual harassment is defined as “unwelcome sexual advances or conduct” and includes quid pro quo harassment or a hostile or offensive work environment. Sexual harassment is any kind of sexual conduct that is unwelcome and/or inappropriate for the work place.  Sexual harassment can take many forms such as verbal harassment, e.g. sexual or dirty jokes, visual harassment, e.g. drawings, emails, etc., physical harassment, and sexual favors, e.g. sexual advances, confrontation with sexual demands (quid pro quo sexual harassment). In the work place, sexual harassment can come from the owner, supervisors, managers, and co-workers. Sexual harassment does not only occur in the work place; it can occur off-site at office functions and parties.

Who can be held responsible of sexual harassment at work?  Both the employer and employees are liable for sexual harassment.

What is quid pro quo sexual harassment? Quid pro quo sexual harassment takes place when a supervisor or someone with authority over a person demands sexual favors in exchange for a promotion, raise or some other benefit, including keeping a job. The demand for sexual favors can be explicit, e.g. “If you have sex with me, I will promote you,” or it can be implied from unwelcome physical contact such as touching or fondling.

What must be proved to prevail in a cause of action for quid pro quo sexual harassment?  A person must show that a supervisor, or someone with authority over their job, explicitly or implicitly conditioned a job, retention of the job, a job benefits (raise, business trip, or some other benefit), on the acceptance of sexual conduct. It must be demonstrated that the harasser is someone with authority who can affect conditions of employment. It must also be proved that the sexual conduct was unwelcome.

How can it be proved that the sexual conduct was unwelcome?  The harassee may show that the conduct was unwelcome by showing that they: explicitly rejected his/her sexual advances; they suffered emotional distress; their job performance deteriorated; they avoided the harasser; they told friends and/or family of the harassment; and they told a company representative of the harassment.  Each case is different and a particular case may or may not include some of these examples.

What are the remedies in a quid pro quo sexual harassment case? The law provides that the harassee may recover damages from their employer once they have proven that they were deprived of a job benefit or suffered an adverse employment action, e.g. failure to promote or termination of employment because they refused to accept the supervisor’s sexual demands.

CONTINUED IN PART 11

 

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