Sexual Harassment

 

What is sexual harassment?

 

Sexual harassment is “unwelcome sexual attention, sexual advances, and requests for sexual favors and other verbal or physical conduct of a sexual nature.” 1 In general, sexual harassment refers to conduct that can be reasonably considered unwelcome or personally offensive.2

There are two discrete forms of sexual harassment: quid pro quo and hostile work environment.

 

What is quid pro quo sexual harassment?

 

Quid quo pro sexual harassment occurs when a victim is forced to provide sexual favors to gain an employment benefit or to avoid an adverse employment action.3

 

How do I establish a quid quo pro sexual harassment claim?

 

In order to establish a quid quo pro sexual harassment claim, you need to prove the following:

  1. You belong to a protected group (i.e., a woman);
  2. You were subjected to unwelcome sexual harassment; and
  3. The harassment complained of was based on your sex.3

 

 

What is hostile work environment sexual harassment?

 

Sexual harassment creates an unreasonable interference with your work environment when the harassing behavior is sufficiently “severe or pervasive to alter the conditions of employment.”5 Moreover, sexual harassment leading to a “hostile working environment occurs whenever a workplace is permeated with unwelcome intimidation, ridicule or insult based on plaintiff's membership in a protected class.”6

Courts have considered other factors to determine whether an environment is sufficiently hostile or abusive. These factors include the frequency of the conduct, the nature of the conduct (physically threatening, humiliating, or offensive), and the conduct’s unreasonable interference with work performance.7

When asserting a claim for this form of sexual harassment, it is not necessary to demonstrate psychological injury. However, psychological injury is a factor courts consider when determining whether an environment is hostile.8 Additionally, the conduct does not need to amount to "economic or tangible discrimination, it need only be severe or pervasive as to alter the conditions of the [victim's] employment.9

 

How do I can establish a hostile work environment claim?

 

In order to establish a hostile-work-environment claim, you must demonstrate the following:

  1. You belong to a protected class;
  2. You were subjected to unwelcome sexual harassment (including sexual advances), request for sexual favors, or other verbal or physical conduct of a sexual nature;
  3. The harassment affected a term, condition, or privilege of employment; and
  4. The doctrine of respondeat superior applied.10
What is respondeat superior?

Respondeat superior is a Latin term meaning “let the superior make answer,” and it is the legal doctrine that holds the employer liable for wrongful acts committed by an employee within the scope of the employment or the agency.11 Courts have held that an employer is directly liable under Title VII for its own negligence in allowing employee harassment when it was fully aware of the conduct but failed to stop it.12 If the employer has a reasonable grievance process and the victim fails to take advantage of the process, the employer may defend itself by showing it exercised reasonable care to correct the sexually harassing behavior.13

 

 

What state laws protect me from sexual harassment?

 

The Pennsylvania Human Relations Act (PHRA) provides women with recourse for sexual harassment claims. 14

 

Who does the PHRA cover?

 

The PHRA covers employers who have four or more employees, including government agencies, charities, and religious organizations. It does not cover agricultural or domestic workers, workers who live in the personal residence of their employer as part of their job, or individuals employed by family members. All other employees are covered. 16

 

How do I establish a sexual harassment claim under Pennsylvania law?

 

Yes. Courts have found that this type of differentiation between married and unmarried female teachers can constitute sex discrimination under the PHRA.13

  1. That submitting to or rejecting the harassing conduct was made either explicitly or implicitly a term or condition of your employment;
  2. (2) That submitting to or rejecting the harassing conduct was used as the basis for employment decisions affecting you; or
  3. That submitting to or rejecting the harassing conduct was made either explicitly or implicitly a term or condition of your employment;
  4. Such conduct had the purpose or effect of unreasonably interfering with your work or creating an intimidating, hostile or offensive working environment.

 

 

What federal laws protect me from sexual harassment?

 

Generally, the answer is no. For you to be considered disabled, you “must have an impairment which substantially limits one of [your] major life activities, or be regarded as having such an impairment.”14 Pregnancy does not in and of itself qualify as such. Under the PHRA, pregnancy does not qualify as a disability.15 Additionally, Pennsylvania courts have held that women who are terminated based on pregnancy have a claim for sex discrimination, not disability discrimination.16

 

Does Title VII of the Civil Rights Act protect me against pregnancy discrimination?

 

Yes.17 The Pregnancy Discrimination Act (PDA) is an amendment to Title VII. Pregnancy discrimination within the context of employment constitutes unlawful discrimination based on sex, as defined under Title VII. Pregnancy discrimination occurs when the treatment of a female applicant or employee is affected because of her “pregnancy, childbirth, or a medical condition related to pregnancy or childbirth,”18 and that this treatment is unfavorable.

 

Am I covered by Title VII?

 

Title VII generally covers employers who employ fifteen or more people, but there are some limited exceptions.19 Although most federal employers are covered, employees of the Library of Congress, the General Accounting Office, and uniformed members of the military are not protected by Title VII.20 Other exemptions include: private membership clubs which have received tax exempt status,21 Indian tribes,22 and public international organizations such as the International Monetary Fund and the World Bank. 23

 

How do I bring a claim under Title VII?

 

In order to bring a claim under Title VII, you have to go through the Equal Employment Opportunity Commission (EEOC). You cannot bring a case to court without first doing so. See The EEOC Process for more information.

 

How long do I have to file my claim under Title VII?

 

Federal employees must file a claim with the agency committing the discrimination within 45 days.24 Because the PHRC is Pennsylvania’s Fair Employment Practices Agency, private employees have 300 days after the alleged discriminatory practice to file a complaint.25 See The EEOC Process for more information.

 

What remedies am I entitled to under Title VII?

 

If the court finds that your employer has violated Title VII, there are several available remedies. The court has the freedom to demand that your employer take appropriate action, such as ceasing the discriminatory practice, hiring or promoting you, or paying you lost wages as far back as two years prior to your complaint with the EEOC.26

However, if your employer can show that there was a non-discriminatory reason for its action as well as the discriminatory reason you proved, and that it would have taken the same action anyway, your remedies will be severely limited. The court is limited to telling your employer to stop the discriminatory practices, declaring that the practices are discriminatory, and paying attorney fees.27

On the other hand, if you can show that your employer discriminated maliciously or recklessly, then the court may award extra payments beyond lost wages.28 These payments are limited by the size of your employer.29

 

Sexual Harassment: “It Happened to Me” 30

 

Tonia Betz (Betz), a former part-time police officer with the Borough of Coaldale, petitioned the Unemployment Compensation Board of Review (Board) for unemployment benefits after establishing sexual harassment that was sufficiently severe and pervasive to create a hostile work environment. During Betz’s term of employment, the chief of police referred to her exclusively as “girl” or “the root” yet referred to other officers by their given names. On a regular basis, the chief placed copies of pornographic material with explicit depictions of nude people engaged in sexual activity in all the employees’ mailboxes, including Betz’s. Betz complained about the sexual harassment but was criticized as being too sensitive. Despite her complaints to the chief, he went as a far as giving her a leather whip with the names “girl” and “root” written on the attached brochure. In addition to the harassment, Betz was assaulted by fellow officers. One officer in particular grabbed her breast and another grabbed her by her neck and back and threw her against the wall. She required hospital treatment as a result of the assault. Betz later complained about the instances of sexual harassment and physical assault to the Councilman of Borough. When her efforts proved futile, she resigned from her position.

Since Betz’s sexual harassment claim established a necessary and compelling reason to terminate her job, her petition for unemployment compensation was reviewed and granted by the Board.

 

 

1 EEOC, http://www.eeoc.gov/laws/types/sexual_harassment.cfm (last visited Jan. 4, 2010).
2 201 Pa. Code § 202 (2010).
3 Lindemann, supra note 144, at 1306
4 Jones v. Flagship Int’l, 793 F.2d 714, 719 (5th Cir. 1986).
5 Lindemann, supra note 144, at 1307.
6 Id.
7 Id.
8 Id.
9 Id.
10 Matthew B. Schiff and Linda C. Kramer, Litigating the Sexual Harassment Case 5 (American Bar Association, 2nd ed. 2000) (1999).
11 Black’s Law Dictionary 1338 (9th ed. 2009).
12 Schiff, supra note 1063, at 5.
13 Faragher v. City of Boca Raton, 524 U.S. 775, 777-778 (1998).
14 43 Pa. Cons. Stat. Ann. § 955(a) (West 2009).
15 Id. at § 954(b).
16 Id. at § 954(c).
17 201 Pa. Code § 202 (2010).
18 42 U.S.C.A § 2000e-2(a)(1)(West 2010).
19 Id. at § 2000e(b).
20 29 C.F.R. § 1614.103 (2009).
21 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-ii (last visited Mar. 1, 2010).
22 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-i (last visited Mar. 1, 2010).
23 EEOC, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B-4-a-iii (last visited Mar. 1, 2010).
24 29 C.F.R. §1614.105(a)(1) (West 2010).
25 EEOC Compliance Manual “Threshold Issues”. http://www.eeoc.gov/policy/docs/threshold.html#2-IV-A (last visited Feb. 26, 2010)
26 42 U.S.C.A. § 2000e-5(g)(1) (West 2009).
27 Id. at § 2000e-5(g)(2)(B)(i)-(ii).
28 Id. at § 1981a-(b)(1).
29 Id. at § 1981a-(b)(3).
30 Borough of Coaldale v. Unemployment Compensation Board of Review, 745 A.2d 729 (Pa. Comm. Ct. 2000).