If you are facing sexual harassment on the job, there are steps you can take to try to stop the harassment -- and protect your rights.
What Is Sexual Harassment?
Legally speaking, sexual harassment is offensive, unwelcome conduct, based on the victim's sex, which is severe or pervasive enough to affect the terms and conditions of employment. One teasing comment or request for a date probably doesn't constitute harassment, by itself. To be severe or pervasive, there must either be a pattern of harassment over time, or there must be an extreme act, such as a sexual assault. The more egregious each incident is, the fewer will be necessary for a court to conclude that they add up to harassment
The requirement that conduct be "unwelcome" is intended to recognize that not all sexual or flirtatious behavior in the workplace is offensive to the recipient. Some requests for a date are accepted, and may lead to welcome relationships, for example. Others -- such as repeated or menacing requests to an employee who has already said no -- are upsetting or even frightening to the employee on the receiving end.
When Is an Employer Liable for Harassment?
The Supreme Court divides harassment into two categories, depending on whether it resulted in a tangible job action against the victim (an action that significantly changes the employee's job status, like getting fired, demoted, or reassigned).
- If the employee suffers a tangible employment action at the hands of a supervisor or manager, the company is generally legally responsible, whether or not the employee complained and whether or not the company knew about the harassment. For example, if a supervisor refuses to promote an employee because she won't go out with him, the company would be liable to the employee, even if no one but the supervisor was aware of the situation. Because a company can only act through its managers, these types of actions are considered the actions of the company itself. (This type of harassment is sometimes referred to as "quid pro quo" harassment.)
- If the employee doesn't suffer a tangible employment action, the company will not be liable if it exercises reasonable care to prevent and promptly correct harassment, and the employee unreasonably failed to give the employer an opportunity to prevent or correct the harassment. For example, if the employee fails to complain about sexual harassment, the employer may not be liable, depending on how it has handled harassment complaints in the past. Once the company knows about the harassment, however, it must immediately put a stop to it.
If You Are Being Harassed
If you are facing workplace sexual harassment, you should tell the harasser to stop (as long as you feel safe doing so). This often overlooked step can be very effective. It also puts the harasser on notice that his conduct is unwelcome. Write down every incident of harassment, keeping any relevant evidence (such as copies of email messages or photos of cartoons or unwanted gifts). Take notes on your conversation with the harasser, too. If you have to file a charge of discrimination or a lawsuit, these notes will help you remember what happened, who has there, and when.
If you aren't comfortable confronting the harasser or your conversation had no effect, complain within the company. Follow your company's procedures for making a complaint; if it doesn't have any, ask the human resources department or a manager how to proceed. This will allow the company to put an end to the problem quickly; if the company doesn't stop the harassment, filing an internal complaint will help you preserve your legal right to sue the company for damages.
If you aren't satisfied with the company's response to your complaint, you can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or your state's fair employment practices agency. (This is a required step if you later decide to file a lawsuit against your employer.) And, if filing a charge doesn't get you the results you want, you can file a lawsuit.
Get Legal Help
If you are facing serious workplace harassment, you may want to consult with an experienced lawyer. A lawyer can help you assess your situation and decide what to do. A lawyer can also help you navigate your employer's investigation process, negotiate with your employer, file an administrative charge, and, if necessary, file a lawsuit.