Do you know that more than 31,354 cases of harassment have been reported annually to the Equal Employment Opportunity Commission? Studies show that at least $200+ million in monetary awards are processed for such cases, and about 86% of all harassment cases within the workplace remain unreported, sexual harassment included.
No one should be put up with sexual harassment on the job, according to https://www.gclawoffice.com/. Else, the workplace will turn into a hostile environment that can have long-term psychological and emotional repercussions on victims.
But what exactly constitutes sexual harassment? And how can you protect yourself from such advances?
Quid Pro Quo Harassment
“Quid pro quo” harassment is from that Latin phrase, meaning “something for something”; it’s like that. occurs when agreeing to sexual conduct is turned into an explicit or implicit requirement of job stuff, like employment, pay, promotion, or even any other employment benefit.
The classic situation is the supervisor who basically ties a promotion, a good performance review, or even staying on the payroll to the employee being willing to go along with sexual activity.
And if the employee says no and then later receives an adverse employment action, that still counts as quid pro quo harassment too. So the supervisor who fires her after she refuses his advances has done it just as much as the one who lays out the terms very plainly.
To prove quid pro quo harassment, there must be some form of tangible employment action relating to it. This includes termination, demotion, or some substantial alteration in benefits.
Strict liability is imposed when the supervisory harasser’s conduct results in tangible employment action based on the Supreme Court’s ruling in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.
Hostile Work Environment Harassment
Hostile work environment harassment need not result in any tangible employment action. The creation of a hostile working environment due to sex-based discrimination is when discrimination becomes sufficiently severe or pervasive such that it transforms the work environment into an abusive one that changes the terms and conditions of employment.
There are basically two dimensions involved with respect to the hostile work environment test, and there is a need to sort them out. There is the issue of an objective-subjective test. This means that on one hand, the environment needs to constitute a situation that would be considered hostile and abusive by a reasonable person.
The plaintiff should, on the other hand, perceive the environment as such. In case the behavior has not caused disturbance in a manner that the plaintiff has perceived, there could be failure on the subjective side. If the incident did not trouble a reasonable person, there could be failure on the objective side.
The second dimension is the severe or pervasive standard. Courts have long said that one act can still make a hostile work environment if it is severe enough, so it does not always need to be pervasive. For example, one incident of rape or assault by a supervisor can meet the standard right away, without any special requirement that it occurs repeatedly.
But where there is no such outrageous behavior, then typically it must be pervasive, which means it occurs often enough throughout time that it actually changes the employee’s work environment. An individual joke or comment alone rarely creates a hostile work environment.
On the other hand, a steady run of sexual jokes, remarks about the employee’s body, sexually explicit messages, and displays of sexually explicit material, happening over weeks or months, does.
The offending acts must be done on account of the person’s gender. Generally, conduct that is merely rude or offensive to all people without distinction would not be considered sexual harassment. Conduct that offends the individual because of his or her gender, regardless of the number of individuals affected, can nonetheless be considered sexual harassment.
Employer Liability for Supervisor vs. Co-Worker Harassment
There are instances where you might think you are overreacting towards your co-workers’ actions. There may not be any skinship involved, but you still feel uncomfortable. In such cases, you may wonder, is sexual harassment always physical?
Do not doubt yourself in these situations. In United States law, unwanted conduct itself can qualify as sexual harassment. Even still, when they are severe and frequent enough that it creates a hostile or intimidating work environment.
The employer’s liability can change, depending on whether the harasser is treated like a supervisor or instead a co-worker. The Ellerth/Faragher setup basically puts things into a structure.
Where there is a hostile work environment established by a supervisory employee that does not rise to the level of tangible employment action, vicarious liability will arise, but the defendant can mount an Ellerth-Faragher affirmative defense.
To succeed in this defense, the company must demonstrate reasonable efforts at prevention and correction of the hostile environment as well as unreasonable failure by the employee to avail himself/herself of the procedures for reporting such harassment.
An employer can be held accountable for a co-worker’s creation of a hostile working environment where the former had knowledge or reasonable grounds to know that the harassment was taking place and did not act to stop it immediately. The employer will be found liable once he knows that the employee is creating a hostile working environment.
The Unwelcomeness Requirement
The Supreme Court in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), basically said that the employee’s “voluntariness” in sexual conduct isn’t really the right question; it is not the point. What counts is whether it was welcome or not. So if an employee goes along with sexual demands out of fear of adverse employment outcomes, they haven’t “chosen” to take part.
Stuff like the employee’s dress, general demeanor, or earlier mutually agreed-upon relationships with the harasser can be only of limited relevance, and it has to be handled with care so it does not quietly move blame onto the person who was targeted.
And then there is also third-party harassment, like harassment by customers, clients, vendors, or other non-employees, which can still be actionable when the employer knows about it and doesn’t take reasonable steps to stop it.
For example, a retail employer whose customer keeps making sexual comments to employees and whose management already knows has a duty to respond, which can include refusing to serve that customer when that is needed. The same notice and response setup that covers co-worker harassment also controls the liability for third-party harassment.
Filing a Sexual Harassment Claim
Title VII sexual harassment claims generally involve having to file an EEOC charge within 180 days of the most recent incident, but if the state itself has its own fair employment agency, it could take up to 300 days. There cannot be a lawsuit filed before filing the EEOC charge since it needs to precede it.
Once the EEOC process is completed, after getting the right-to-sue letter, the plaintiff will have 90 days to bring a lawsuit against the employer in federal court. State law claims can differ in terms of deadlines and even administrative proceedings in some cases according to state statutes.
What is more, when we talk about monetary damages, under Title VII the limits on punitive and compensatory damages are set according to the number of employees the defendant company has. It goes from $50,000 for the lowest category (with fewer than 15 employees) to $300,000 for employers with more than 500 people. However, back pay is unlimited.
