5 Tricky Sexual Harassment Situations

posted by Daniel Stevens  |  Oct 16, 2018 12:56 PM [EST]  |  applies to California

5 Tricky Sexual Harassment Situations


1.  Where did all the love go?

While it is not exactly against the law to date a co-worker, superior, or an underling, it does tend to complicate things legally, especially when things turn sour.  There are different views in the legal system concerning what rights an employee has after he or she has decided to end an office romance and the rejected party, who is a supervisor, is accused of sexual harassment.  For example, an employee may experience work-related negative treatment from a supervisor whom the employee dated for a period of time.  The issue is the employee may reasonably suspect the negative treatment, although work-related, may be based on resentment from the breakdown of the relationship; the supervisor has animosity towards the employee. Should the employee attempt to pursue legal proceedings, it may be difficult to make their claim.

Particularly, in a scenario where the employee attempts to make a quid pro quo claim against the supervisor, the employee’s legal grounds for a sexual harassment claim may be under scrutiny depending on the facts.  For instance, if a supervisor propositioned the employee, a sexual favor in exchange for refraining from reprimanding the employee, may be considered quid pro quo, but considering the past romantic relationship between the employee and supervisor, it may be a tough claim to track.

An employee might have an issue making their case due to the negative treatment towards he or she being distinguished from two potential sources.  One source of the treatment may be from the supervisor’s feelings of resentment from the breakup or it is based on reasonable grounds for the employee’s unsatisfactory performance.  Technically, if the source of the adverse behavior towards the employee was from the breakdown of the past relationship, then the employee may have a retaliation claim against her supervisor.

In a unique situation such as this, although it is complicated, it is important for the employee to explore their legal options in case their job may be in jeopardy.  Talking to a Sexual Harassment Lawyer is the best option when there is such uncertainty.


2.  Tell me what you really want

Where an employee is offered a job benefit in exchange for sexual favors, or the employee’s job is threatened if he or she does not provide the sexual favor, verbally or in writing, it is easier to make a quid pro quo claim.  However, what if the employer’s propositioning was not as direct? What if it was actually indirect, subtle, or could be implied?  Does an employee have a sexual harassment claim still?

In a scenario where the employer is flirtatious towards the employee insinuates that the employee’s current employment depends on if he or she reciprocates, that give rise to a sexual harassment claim.  Put simply, if an employer is making sexual advances towards the employee, it may be implied that the connection between the harasser being superior to the employee, is enough to claim quid pro quo.  It would be implied that the employee’s cooperation with the flirtation is a condition upon he or she keeping their job.

Let’s say Sally’s boss sent her an email that contained a sexually suggestive meme.  The meme made Sally uncomfortable on its face, but her uneasiness was exacerbated by the fact that it came from her boss. The next day, Sally’s boss saw her in the copy room and brought up the meme in conversation.  Sally expressed her distaste for the meme and found it to be highly inappropriate.  A few days later, Sally was reprimanded for a bogus reason.  Here, Sally may infer that in order to stay in her boss’ good graces and to ultimately keep her job, she may have to comply with his sexual advances.  This is a potential situation where Sally may have a claim for sexual harassment based on an implied quid pro quo.

Of course, each situation is different and exceptional, based on the particular facts, but the employee may still have a case against the employer.


3.  Fear in the driver’s seat

What if an employee feels pressured to date their boss and they go along with it? Does saying yes mean the employee does not have a sexual harassment claim?  An employee in this situation may feel hopeless and uncertain they have a legal claim against their boss due to their own “voluntariness”.  However, what if the employee only welcomed the sexual advances or agreed to go on a date because he or she was in fear of losing their job?

Depending on the particulars of the situation, an employee who willingly participates in their employer’s flirtation out of fear of losing their job may still have a case for sexual harassment.  An Employment Law lawyer would go through all the facts of the case to decide whether the employee’s situation has grounds for making a legal claim.


4.  Out of bounds?

It may seem unlikely, but an employee may have a claim for sexual harassment outside of the office.  Sexual harassment within the workplace does not necessarily have to take place at work.  An employee may experience unwelcome and unwanted sexual advances towards them outside of the work-space by a superior.  Although there are limitations to this principle, there are some aspects of this situation that the law recognizes to be a situation where an employee has still become a victim of sexual harassment in an employment setting.  Although it is a tricky situation, it stays may be a potential sexual harassment claim.


5.  Picked on because of your sex

Sexual harassment is considered a form of sex discrimination, meaning an individual is singled out and treated adversely based solely on their sex.  Where this claim can become complicated, is establishing this claim up to the legal standards.  An employee who wants to make a sex discrimination claim may need to show that other people at their place of employment, who are the same sex, received the same treatment.  In addition, it needs to also be shown that all employees of the opposite sex did not receive the same negative treatment.


Source: 5 Tricky Sexual Harassment Situations

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