Sexual Harassment Claims

 

I think I am being sexually harassed at work, how do I prove it?

 

Under the Wisconsin Fair Employment Act (WFEA), you can file a claim of sexual harassment under one of two theories: quid pro quo and hostile work environment.

 

To prove a claim for quid pro quo sexual harassment, you must show each of the following elements:
(1) that you are a member of a protected class (women are a protected class);
(2) that you were subjected to unwelcome sexual harassment;
(3) that the harassment was based on your sex;
(4) that your submission to unwelcome harassment was a condition of receiving benefits, or your failure to submit resulted in detrimental employment actions; and
(5) that your employer knew or should have known about the harassment and took no effective remedial action.

 

To prove a claim for hostile work environment, you must show each of the following elements:(1) that you were subjected to unwelcome sexual conduct, advances or requests;
(2) that the harassment was based on your sex;
(3) that the unwelcome sexual conduct, advances, or requests were severe or pervasive enough to create a hostile work environment; and
(4) that there is a basis for employer liability. (Generally, there is a basis for employer liability if an employer knew or should have known about the harassment and failed to take appropriate action.

 

What does "Quid Pro Quo" sexual harassment look like?

 

Quid pro quo literally means "something for something." Quid pro quo sexual harassment occurs when a supervisor behaves in a way or demands actions from an employee that forces an employee to decide between giving in to sexual demands or losing their job, losing job benefits or promotion, or otherwise suffering tangible job detriments.

 

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

 

If your workplace is infused with intimidation, ridicule, and insult that is severe or pervasive enough to create a seriously uncomfortable or abusive working environment, then you may have a claim of hostile work environment sexual harassment. The conduct must be severe enough to create a work environment that a reasonable person would find hostile.

 

How do I show that this conduct affected my ability to work?

 

If your behavior has significantly changed, you have sought counseling, or you have been absent from work due to your uneasiness because of the harassment, you may be able to show that your ability to work was indeed affected.

 

How do I show that my employer knew what was going on?

 

Keep records! Note dates of harassment, specific language used, and ask other women if they are experiencing the same treatment. File a complaint through the proper channels at your work, and if none are provided, start documenting instances of harassment and go to your boss or your boss's supervisor if you feel that your harassment is severe. The more documentation and facts you have to back you up, the better your case will be.

 

Can I file a claim against my boss/supervisor under the WFEA?

 

Yes, sexual harassment is prohibited under the WFEA. You may file claims against your boss or supervisor for either quid pro quo sexual harassment or hostile work environment.

 

Can I bring a claim against my co-worker if he is not my boss or supervisor?

 

No, you may not file a claim against a co-worker if he or she is not your boss or supervisor. Your employer may still be liable, however, if he or she knew or should have known about the harassment and failed to take action.

 

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

 

If your employer failed to take appropriate action or the harassment continued, you may still be able to file a claim.

 

I reported to my employer, but they didn't do anything -- can I still file a claim?

 

Yes, your employer has an obligation to take appropriate action within a reasonable period of time. If it fails to do so, then you have a potential claim.

 

What if my harasser is also a woman?

 

The WFEA prohibits sexual harassment from members of the same sex as well. There is a lack of case law on this topic, so it is unclear exactly how sexual harassment between members of the same sex operates.

 

Is one incident of sexual harassment sufficient basis for a claim?

 

One incident of sexual harassment, unless particularly severe, will generally not rise to level of harassment under the WFEA. A single incident of unwanted touching, however, may constitute harassment, if not possibly criminal behavior.

 

Can I get damages for emotional distress?

 

Damages for emotional distress are not available under the WFEA. You could, however, pursue damages for emotional distress in an entirely separate tort claim of intentional infliction of emotional distress. To do so, you would need to show that:(1) your employer's actions were intentional;(2) your employer's actions were outrageous and extreme;(3) your employer's actions were the factual cause of your injury; and (3) that you suffered a disabling emotional response as a result.

 

What is the difference between sex discrimination and sexual harassment?

 

Sexual harassment is often a part of sex discrimination. Sex discrimination encompasses many types of discrimination including sexual harassment, pregnancy discrimination, unequal pay claims and disparate impact.

 

What could my employer do to deny my allegations, and how do I respond to their denials?

 

Your employer could attempt to prove, that even if what you allege in your complaint is true, that he or she exercised reasonable care to prevent and correct any sexually harassing behavior and that you unreasonably failed to take advantage of any corrective opportunities they provided for you.. This defense is not available to your employer if the harassment ends in your discharge, demotion, or reassignment. If your employer is able to make the defense, you can refute it by showing that your employer was actually unresponsive to your concerns about sexual harassment, or that the response was insufficient.

 

Does it matter when the discrimination occurred?

 

Yes, you must file a claim with the Wisconsin Equal Rights Division within three hundred (300) days of the discriminatory action.

For more information, please see What Does the Law Say?

 

Does it matter how many employees my employer has?

 

No, the WFEA applies to all employers regardless of the number of employees.

For more information, please see What Does the Law Say?

 

If I prove my sexual harassment claim, what kind of remedies am I entitled to?

 

You may be entitled to injunctive or monetary relief. However, remedies vary from case to case. For more information, please see Remedies.

 

 

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