SEXUAL HARASSMENT/MISCONDUCT PART 2

What do you do if you become a victim of sexual harassment?  Keep a record of the events surrounding the sexual harassment including the date, time, place, and who was present.  These notes may become very important in litigating the case but the notes may be required to be turned over to the employer during the discovery phase of litigation. Check the company’s employee handbook, if one exists, to determine if the company has a procedure for handling sexual harassment complaints. If there is a procedure for filing a sexual harassment complaint, it must be complied with.  If you do not complain to the employer, the employer can successfully defend itself from liability by arguing that it was not aware of the problem and therefore was unable to remedy the harassment.  However, if the problem is not remedied, the employee may wish to speak to an attorney for advice on how to file a formal complaint with the appropriate federal or state or city agency, or the employee may contact the Equal Employment Opportunity Commission for information.

Once the employer is informed about the sexual harassment, what must the employer do?  Once the employer knows or should have known about the harassment, it has a duty to take immediate and appropriate corrective action to end the harassment.  The employer’s response must be reasonably calculated to end the harassment and if earlier discipline did not end the harassment, more severe discipline is required.

Is my employer still responsible if the harasser is a co-worker?  If the demand for sexual favors is made by a co-worker with no power to affect employment opportunities, a quid pro quo harassment cannot be claimed.  However, it may be claimed that the co-workers actions create a hostile work environment and an employer may be held liable for the conduct of the employee if the employer knew or should have known of the employee’s conduct and failed to take prompt remedial action to stop the harassment.

What is “hostile work environment” sexual harassment?  An employee has the right to work in an environment that is free of discrimination, intimidation, insult and ridicule.  The employee as a potential claim for hostile work environment if the sexual harassment unreasonably interferes with work performance or creates an offensive or intimidating work environment.  In order to have a claim for hostile work environment, it must be proven that there was more than a single incident of harassment. It must also be shown that the sexual conduct was unwelcome.

What are examples of a hostile or offensive work environment? Sexually-charged jokes or pranks, being grabbed or whistled at, sexual advances, requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature can create a hostile work environment and can qualify as sexual harassment.  Conduct that makes the workplace sexually charged does not need to be directly aimed at an individual. For example, being subject to offensive company-wide emails may create a hostile or offensive work environment.

What must be shown in order to recover damages for a hostile work environment?  It must be shown that the unwelcome sexual conduct was so severe and pervasive that it “altered the conditions of employment by creating a psychologically abusive work environment.”  The employer may be held liable if the employer knew or should have known of the harassment and failed to take prompt remedial steps to stop the harassment.

How can it be proven that the harassing conduct was severe or pervasive enough to alter the working conditions and create an abusive environment?  Both an objective and a subjective standard must be met.  The objective standard is met if a Court determines that a “reasonable person in the position” would have considered the conduct severe or pervasive.  Under the subjective standard, it must be found that the conduct was sufficiently severe or pervasive to interfere with the work environment. In other words, a Court looks at what the reaction to the conduct was, and whether the reaction was reasonable, according to how a “reasonable person in the position” would have reacted.

What types of damages can be recovered if successful in demonstrating sexual harassment? A Court may order the company to: stop the harassment; pay lost wages and other job-related losses (e.g. promotions, or favorable work status lost because of the sexual harassment); pay compensation for physical, mental and emotional injuries; pay punitive damages; pay attorneys’ fees and expenses associated with litigating the case.  Not all employment disputes require a lawsuit, and sometimes negotiation is the best course of action.

In a 2010 study conducted by the University of Michigan, it was found that 90% or 9 out of ten women have suffered from sexually harassment in their workplace at some point in their lives. This fact indicates that despite the prevailing laws on sexual harassment, modern women are still currently confronting these kinds of treatment in their work environment.  According to the Equal Rights Advocates, sexual harassment in the workplace can be defined as the “severe or pervasive act within a sexual nature that can create a hostile work environment and affect working conditions.” Additionally, if the person being harassed has been refused of the benefits of their profession mainly because they denied someone sexual favors, then that can be considered as sexual harassment. Although a majority of harassment cases involve a male harasser, there have been cases where the harasser was female.  Every employee has the right to work in a safe, hostile free environment.  The law is clear – Sexual Harassment is illegal in government, business and industry.

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