Sexual Harassment

 

What is sexual harassment?

 

Sexual Harassment is a type of employment discrimination consisting of verbal or physical abuse of a sexual nature.1 The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome sexual attention; it can include “a request that creates a hostile work environment for a reasonable person of that gender.” 2

 

What are the federal laws regarding sexual harassment?

 

Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of sex. This includes sexual harassment. 3

 

What are North Carolina’s laws regarding sexual harassment?

 

North Carolina’s anti-discrimination laws arguably serve the same purpose as Title VII. Sexual harassment is never in the interest of public policy and is therefore unlawful. However, sexual harassment claims can also be brought together with other claims, such as wrongful discharge or discrimination.

State employers will be subjected to hearings at the Office of Administrative Hearings (OAH) if found to engage in harassment in the workplace based on sex, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.5 Businesses in North Carolina are also prohibited from firing, failing or ceasing to hire, promoting or appointing a North Carolinian to any position of employment on the basis of sex.6

 

Are there tort alternatives to sexual harassment offered in North Carolina?

 

The Attorney General can file a civil suit to prevent businesses from discriminating against their employees on the basis of sex. However, the court must determine that there was a willful violation in order to rule against the employer. The injured party may be awarded up to three times the amount of damages resulting from the violation, including costs and reasonable attorney’s fees.” 7

 

How do I bring a claim for sexual harassment under North Carolina law?

 

If you believe that you were demoted, laid off, transferred, or fired in retaliation against discrimination because of your sex, and you are a current or former state or county employee, you may file your complaint with the Civil Rights Division (CRD) of the OAH, which is a deferral agency that is charged with handling employment discrimination claims, or directly with the Equal Employment Opportunity Commission (EEOC).8 Note that you may file your claim with the CRD without exhausting in-house or agency grievance procedures.9

To be eligible to file with the CRD, you must be a current or former state or county employee that is or was subject to the provisions of the State Personnel Act, Chapter 126 of the North Carolina General Statutes.10 The following employees are also eligible: non-exempt State Government employees; non-exempt UNC employees; and County Social Services, Mental Health, Public Health and Civil Preparedness employees.11

If you are not a current or former state or county employee, there is no state administrative agency that handles employment discrimination claims and you must file a complaint directly with the EEOC.12

See next question for how to file with the CRD. If you would like to file directly with the EEOC see discussion on how to file your claim under federal law.

 

How do I file a claim with the CRD?

To file a claim, also known as a “charge,” you must contact the CRD by mail, telephone or in person at:

1711 New Hope Church Road
Raleigh, NC 27609
(919) 431-3036

When filing a charge be sure to include the following information:

  1. Your name, address and telephone number;
  2. The name, address and telephone number of your employer;
  3. A brief description of the alleged discrimination;
  4. The date(s) of the alleged violation(s);
  5. Comparative information; and
  6. The names and contact information of witnesses to the alleged incident(s).13
Note that until the CRD receives a signed official charge form, the CRD will not consider it as having been filed.

 

How long do I have to bring a claim with the CRD?

 

You must file your charge with the CRD within 180 days from the date of the wage discrimination.14 If the CRD receives your charge on the 181st day, it will be transferred to the EEOC for further processing. 15

 

What remedies are available to me?

 

If the CRD finds that the evidence you provided does not establish wage discrimination, the Director of the CRD will issue a notice of determination to you and your employer explaining this finding.16 This notice closes the case with the CRD and will allow you 90 days, after receiving the notice of a “right to sue” from the EEOC, to file a lawsuit in state or federal court on your own behalf.17

If the CRD finds that the evidence establishes wage discrimination, the Director of the CRD will issue a notice of determination to you and your employer explaining this finding. The CRD will then attempt conciliation to arrive at a remedy for the discrimination you suffered. If you and your employer reach an agreement about the remedy you will be prohibited from going to court at a later date, unless your employer fails to honor the agreement.18

If the CRD is unable to reach an agreement with your employer about the remedy, the CRD will forward your case to the Charlotte District Office of the EEOC for review and further processing.19 The EEOC may reach out to your employer and try to reach an agreement again.20 If the EEOC is unable to successfully conciliate the case, it may decide to sue your employer in Federal Court on your behalf.21 If the EEOC decides not to sue on your behalf,22 however, it will issue a notice closing the case and giving you a notice of a "right to sue" which provides 90 days in which to file a lawsuit on your own behalf. In Title VII and ADA cases against State and Local governments, the notice of a "right to sue" is issued from the Department of Justice. 23

 

Sexual Harassment: “It Happened to Me” 24

 

LaDonna Harrison (LaDonna) was hired by Edison Brothers (Edison) in November of 1986 in Winston-Salem, North Carolina. Her store manager, Melvin Wall, Jr., (Wall) made sexually suggestive remarks to her, touched her without her consent, and asked for sex. Despite reporting Wall’s conduct to his supervisor in December, Wall continued to sexually harass LaDonna.

A week after reporting him, LaDonna found that she had been removed from duty for that week and the following. She attempted to call the regional manager again, but he did not accept her call. LaDonna filed a lawsuit against Wall and Edison for battery, intentional infliction of emotional distress, negligent retention of employee, and wrongful discharge.

After multiple trials, the court dismissed all but LaDonna’s wrongful discharge claim because she showed she had been fired for refusing to have sex with her employer. After 12 years of court cases and appeals, LaDonna was awarded $225,000 in damages. Unfortunately, this ruling was overturned due to insufficient evidence. LaDonna’s attorney narrowly escaped being sanctioned by the court.

 

 

1 Black’s Law Dictionary 653 (8th Ed. 2004).
2 EEOC, http://www.eeoc.gov/laws/types/sexual_harassment.cfm (last visited Jan. 4, 2010).
3 Id.
4 N.C. Dep’t of Corr. v. Gibson, 301 S.E.2d 78 (N.C.1983).
5 N.C. Gen. Stat. Ann. § 126-36 (West 2009).
6 Id. at § 75B-2.
7 Id. at § 75B-4.
8 10A N.C. Admin. Code 5C.0216 (2010).
9 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#4 (last visited Mar. 3, 2010).
10 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#3 (last visited Mar. 3, 2010).
11 Id.
12 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/ (last visited Mar. 3, 2010).
13 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#7 (last visited Mar. 3, 2010).
14 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#8 (last visited Mar. 3, 2010).
15 Id.
16 North Carolina Office of Administrative Hearings, http://www.oah.state.nc.us/civil/faq.html#13 (last visited Mar. 3, 2010).
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.
22 Id.
23 North Carolina Office of Administrative Hearings, http://www.ncoah.com/civil/faq.html#13(last visited Jan. 10, 2010).
24 Harrison v. Edison Bros. Apparel Stores, Inc, 151 F.3d 176 (4th Cir. 1998).