Sexual Harassment Claims

 

I think I am being sexually harassed at work.

 

 

It happened to me: A Real Life Story

 

 

What is sexual harassment?

 

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.

 

What is the difference between a "Quid pro quo" and a "Hostile environment" claim of sexual harassment?

 

In a "Quid pro quo" incident, the female employee suffers a significant change in employment status due to her rejection of a supervisor’s sexual advances (legally known as "tangible actions"). The supervisor uses his or her position of authority to obtain sexually related favors. In a "hostile environment" incident, the female employee suffers "severe and pervasive" hostile treatment which unreasonably interferes with her work performance (legally known as "intangible actions"). The hostile treatment can be carried out by a supervisor or co-worker, making the use of employer authority unclear.

 

What does "Quid pro quo" sexual harassment look like?

 

"Quid pro quo" sexual harassment occurs when a supervisor acts with the employer’s authority and makes a decision that inflicts direct economic harm on the female employee constituting a significant change in employment status, such as: firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.

 

How do I prove a "Quid pro quo" claim of sexual harassment?

 

There are generally five legal requirements that you must meet in order to establish a "Quid pro quo" claim of sexual harassment. These requirements may vary slightly according to the region of the country in which you reside. The five legal requirements are, that:
1. you belong to a protected group;
2. you were subject to unwelcome sexual advances;
3. the harassment complained of was based upon sex;
4. your reaction to the harassment negatively affected the terms and conditions of your employment; and
5. the harassment was done by a superior.

 

It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case.

 

How do I prove that I belong to a protected group?

 

Title VII protects women. Therefore, a simple gender stipulation suffices.

 

How do I prove that the sexual advances were unwelcome?

 

Any sexual advance that makes you feel uncomfortable may be considered unwelcome. The best way to establish that the conduct is unwelcome is by directly telling your supervisor that such advances make you uncomfortable or by resisting such advances by ignoring them or walking away. Rejection or resistance to such advances will usually allow the court to determine that the conduct was unwelcome.

 

How do I prove that the harassment complained of was based upon sex?

 

Common sense can be used to determine that the sexual advances were made because of your sex.

 

How do I prove that the harassment negatively affected my employment’s terms and condition?

 

Evidence that you were in good employment standing, such as good reviews and verbal appraisals, prior to refusing the supervisor’s sexual advances usually suffices to show a negative affect. The court may consider the sudden change of your good employment standing as evidence indicating that your refusal to submit to the sexual advances caused your demise.

 

How do I prove that the harassment was done by a supervisor?

 

It is sufficient to show that the sexual advances and adverse employment decision were made, at least in part, by the harassing superior at work. Facts used to establish the five legal requirements can also be used to demonstrate that the employer’s reason for taking the adverse action was neither credible nor the true determinative factor in making its decision.

 

Is one incident of "Quid pro quo" sexual harassment sufficient basis for a claim?

 

Yes, one incident can be sufficient, as long as the adverse employment decision was made by the harassing superior.

 

What could my employer do to deny my claim?

 

Your employer will have to present evidence which establishes that the adverse employment decision was not due to the refusal of sexual advances, but that the treatment was actually due to legitimate business decisions. Evidence demonstrating your poor work performance or poor working skills may be used by the employer to establish that the decision was legitimate and unrelated to the stalling of sexual advances.

 

What happens next?

 

You must present evidence establishing that the employer’s reason is merely an excuse or that more likely than not your refusal to submit to the sexual advances was the true motivating reason for the discriminatory treatment. For instance, if your employer’s offered reason for the adverse action was poor work performance, you could show that the reason was an excuse by presenting evidence such as employment records showing that your work performance was indeed within company standards. Perhaps the best action you can take, in anticipation of an adverse decision, is to gather your employment records and make copies of them. However, do not worry if it is too late to do so, because the court will usually order the employer to provide such records.

 

Keep in mind that the stated arguments are not exhaustive; consequently, there may be other ways by which you can establish the legal requirements and that the employer’s proffered reason for making the adverse decision against you is a cover-up for your refusal to submit to sexual advances.

 

What does "Hostile Work Environment" sexual harassment look like?

 

Sexual harassment is classified as "hostile work environment" when such conduct unreasonably interferes with an individual’s work performance. The behavior must be so "severe or pervasive" that a reasonable person would find it hostile or abusive. Such a determination can be made by considering factors such as: frequency of the conduct, offensiveness of the conduct, interference of the conduct with work performance and a host of other factors.

 

Whose harassing conduct will my employer be legally responsible for?

 

Your employer will be responsible for any hostile environment created by a supervisor with immediate (or successive) authority over the female employee, or for a hostile environment created by a co-worker.

 

How do I prove a "Hostile Work Environment" claim of sexual harassment?

 

There are generally six legal requirements that you must meet in order to establish a "hostile work environment" sexual harassment claim. These requirements may vary slightly according to the region of the country in which you reside. The six legal requirements are that:
1. you belong to a protected group;
2. you were subjected to unwelcome sexual harassment;
3. the harassment was based upon sex;
4. the harassment was sufficiently "severe or pervasive" so as to alter the condition of employment and create an abusive work environment;
5. the conduct was both objectively and subjectively offensive; and
6. the basis for employer’s fault has been established.

 

It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case.

 

How do I prove that I belong to a protected group?

 

Title VII protects women. Therefore, a simple gender stipulation suffices.

 

How do I prove that the sexual advances were unwelcome?

 

Any sexual advance that makes you feel uncomfortable may be considered unwelcome. The best way to prove that the conduct was unwelcome is by directly telling the supervisor or co-worker that such advances make you uncomfortable, or by resisting such advances by ignoring them or walking away. Rejection or resistance to such advances will usually allow the court to determine that the conduct was unwelcome.

 

How do I prove that the harassment complained of was based upon sex?

 

Common sense can be used to determine that the sexual advances were made because of your sex.

 

How do I prove that the harassment was "severe or pervasive"?

 

Evidence establishing that you were given compliments regarding your body, that you were touched, that you were told you were being watched and even followed home may be sufficient to make a determination that the harassment was "severe or pervasive." The courts will generally take into consideration the frequency of the harassing conduct when determining if such conduct was "severe or pervasive." The greater the frequency of such unwelcome conduct, the greater the likelihood the court will determine that such conduct was indeed "severe or pervasive."

 

How do I prove that the conduct was both subjectively and objectively offensive?

 

Your testimony stating that you felt frightened or that you felt the conduct was hostile and abusive may be sufficient to satisfy the "subjective" requirement. The "objective" requirement may be satisfied when it is determined that another woman facing the same situation as yourself would find the conduct to be hostile or abusive.

 

How do I prove a basis for my employer’s fault?

 

If the harassing conduct was done by a supervisor:The supervisor’s use of his status to facilitate the harassment will be sufficient to determine a basis for employer’s fault.

 

If the harassing conduct was done by a co-worker:You must demonstrate that the employer "knew or should have known" of the sexual harassment and failed to implement prompt and appropriate action. Proving that your employer "knew or should have known" of the harassment may be accomplished through evidence showing that you complained to the appropriate authorities as instructed per company policy. The more you exhaust the available means of reporting the unwelcome conduct, the greater the likelihood of proving employer’s fault.

 

Is one incident of "Hostile Work Environment" sexual harassment sufficient basis for a claim?

 

Given that a conduct must be "severe or pervasive," one incident of sexual harassment is generally not sufficient to establish employer’s fault.

 

What could my employer do to deny my claim?

 

Your employer may defend against a claim of sexual harassment by establishing that:
1. the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
2. you, the employee, unreasonably failed to take advantage of any preemptive or corrective opportunities provided by the employer or to avoid harm otherwise.


The employer must meet both requirements.

 

What evidence will prove or disprove that my employer meets the requirements to deny my claim?

 

1. A court may consider the employer to have exercised reasonable care to prevent the sexually harassing behavior if it had a policy against sexual harassment and a procedure that called for employees to present their complaints either to their supervisor or directly to higher officials. Sexual harassment orientation classes, posters and policies against sexual harassment have also been considered reasonable preventive measures. Whether the employer took reasonable steps to promptly correct the harassing conduct may be established by disciplinary actions taken against the harasser.
2. A court may determine that the employer failed to meet the second requirement if a female employee complained to her supervisor about the harassing conduct. Courts tend to hold employers to a higher level of responsibility when they have been placed on notice of the harassment.

Keep in mind that the stated arguments are not exhaustive; consequently, there may be other ways by which you can establish the legal requirements and that the employer cannot meet both requirements of its defense.

 

What if my harasser is also a woman?

 

An action may be available as long as the requirements for sexual harassment are met.

 

I reported to my employer, but it didn’t do anything. Can I file a claim?

 

Your employer will very likely be found at fault if you complained to the proper authorities, yet your employer failed to take prompt corrective actions to stop the harassing conduct. Perhaps the best indicator of a need to file a claim is an employer’s unwillingness to take action.

 

I complained to my employer, and it reprimanded the harasser. Can I still file a claim?

 

Although each incident is unique and must be judged in context, the likelihood that your employer will be found at fault is very low if the employer took appropriate steps to stop the harassing conduct.

 

What if several of the incidents regarding my "Hostile Work Environment" sexual harassment claim took place outside the required filing period?

 

Although a claim of sexual harassment must be filed within 180 days of the offense, you can include all of the incidents of harassment that took place prior to the filing period deadline because sexual harassment is comprised of a series of acts that collectively constitute one unlawful employment practice.

 

 


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