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By Brendan Chao

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

Here are some Frequently Asked Questions:

What is sexual harassment?

Sexual harassment is defined as “unwelcome sexual advances or conduct.” Sexual harassment includes quid pro quo harassment or a hostile or offensive work environment. Sexual harassment is any kind of sexual conduct that is unwelcome and/or inappropriate for the work place. Sexual harassment can take many forms: verbal harassment, e.g. sexual or dirty jokes, visual harassment, e.g. drawings, emails, etc., physical harassment, and sexual favors, e.g. sexual advances, confrontation with sexual demands (quid pr quo sexual harassment). In the work place, sexual harassment can come from the owner, supervisors, managers, and co-workers. Sexual harassment does not only occur in the work place; it can occur off-site at office functions and parties.

Who can be held responsible if I am the victim of sexual harassment at work?

Both the employer and employees are liable for sexual harassment.

What is quid pro quo sexual harassment?

Quid pro quo sexual harassment takes place when a supervisor or someone with authority over your job demands sexual favors from you in exchange for a promotion, raise or some other benefit, including keeping your job. The demand for sexual favors can be explicit, e.g. “If you have sex with me, I will promote you,” or it can be implied from unwelcome physical contact such as touching or fondling.

What must I prove to prevail in a cause of action for quid pro quo sexual harassment?

You must show that a supervisor, or someone with authority over your job, explicitly or implicitly conditioned a job, retention of your job, a job benefit (raise, business trip, or some other benefit), on your acceptance of sexual conduct. You must demonstrate that the harasser is someone with authority who can affect conditions of your employment. You also have to prove that the sexual conduct was unwelcome.

How can I prove that the sexual conduct was unwelcome?

The sexual conduct must be unwelcome. You may show that the conduct was unwelcome by showing that you: explicitly rejected his/her sexual advances; you suffered emotional distress; your job performance deteriorated; you avoided the harasser; you told friends and/or family of the harassment; and you told a company representative of the harassment. Each case is different and your case may or may not include some of these examples.

What are my remedies in a quid pro quo sexual harassment case?

The law provides that you may recover damages from your employer once you have proven that you were deprived of a job benefit, or suffered an adverse employment action, e.g. failure to promote, termination of employment, because you refused to accept your supervisor’s sexual demands.

What To Do If I Think I am the Victim of Sexual Harassment?

Keep a record of the events surrounding the sexual harassment, include the date, time, place, and who was present. Your notes may become very important in litigating the case, but bear in mind that these notes may be required to be turned over to the employer during the discovery phase of litigation. Check the company’s employee handbook, if one exists, to determine if the company has a procedure for handling sexual harassment complaints. If the company has a procedure for filing a sexual harassment complaint you must comply with it. If you do not complain to the employer, the employer can successfully defend itself from liability by arguing that it was not aware of the problem, and therefore was unable to remedy the problem. However, if the problem is not remedied, you may wish to speak to an attorney for advice on how to file a formal complaint with the appropriate federal or state or city agency. You may still want to speak with an attorney before you file the complaint with the company to ensure that it is communicated appropriately.

Once I inform my employer about the sexual harassment, what must my employer do?

Once the employer knows or should know about the harassment, it has a duty to take immediate and appropriate corrective action to end the harassment. The employer’s response must be reasonably calculated to end the harassment and if earlier discipline did not end the harassment, more severe discipline is required.

Is my employer still responsible if the harasser is a co-worker?

If the demand for sexual favors is made by a co-worker with no power to affect your employment opportunities, you cannot claim quid pro quo harassment. However, you may claim that the co-workers actions created a hostile work environment, and an employer may be held liable for the conduct of the employee if the employer knew or should have known of the employee’s conduct and failed to take prompt remedial action to stop the harassment.

What is “hostile work environment” sexual harassment?

As an employee, you have a right to work in an environment that is free of discrimination, intimidation, insult and ridicule. You have a potential claim for hostile work environment if the sexual harassment unreasonably interferes with your work performance or creates an offensive or intimidating work environment. In order to have a claim for hostile work environment, you must be able to prove that there was more than a single incident of harassment. You also have to show, as in quid pro quo sexual harassment, that the sexual conduct was unwelcome.

What are examples of a hostile or offensive work environment?

Sexually-charged jokes or pranks, being grabbed or whistled at, sexual advances, requests for sexual favors or other verbal, visual, or physical conduct of a sexual nature can create a hostile work environment and can qualify as sexual harassment. Conduct that makes the workplace sexually charged does not need to be directly aimed at you. For example, being subject to offensive company-wide emails may create a hostile or offensive work environment.

What must I show in order to recover damages for a hostile work environment?

You must show that the unwelcome sexual conduct was so severe and pervasive that it “altered your conditions of employment by creating a psychologically abusive work environment.” The employer may be held liable if he/she knew or should have known of the harassment and failed to take prompt remedial steps to stop the harassment.

How can I prove that the harassing conduct was severe or pervasive enough to alter the working conditions and create an abusive environment?

You must be able to meet both an objective and a subjective standard. The objective standard is met if a Court determines that a ‘reasonable person in your position’ would have considered the conduct severe or pervasive. Under the subjective standard, you must have actually found the conduct sufficiently severe or pervasive to interfere with your work environment. In other words, a Court looks at what your reaction to the conduct was, and whether your reaction was reasonable, according how a ‘reasonable person in your position’ would have reacted.

What types of damages can I recover if I am successful in demonstrating sexual harassment?

A Court may order the company to: stop the harassment; pay lost wages and other job-related losses (e.g. promotions, or favorable work status you lost because of the sexual harassment); pay compensation for physical, mental and emotional injuries; pay punitive damages; pay your attorneys’ fees and expenses associated with litigating your case.

Not all employment disputes require a lawsuit, and sometimes negotiation is the best course of action. I have considerable experience negotiating with employers who have as few as 4 employees to employers who have as many as 100,000 employees.

If you work in the State of New York, call toll-free 866-424-2644 now for a no-cost consultation to allow me to begin evaluating your case.

About the Author: Brendan Chao EMPLOYEE RIGHTS LAW

bchaolaw.com

“I have extensive experience in the area of

employment law and sexual harassment!”

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