Sexual harassment FAQs

By Mary T. Keating, Esq.

Contents


What is sexual harassment?

Sexual harassment is a form of discrimination, where one gender is treated worse then the other through:

    * unwelcome sexual advances;
    * requests for sexual favors, and
    * other verbal or physical conduct that is base on sex.

Sexual harassment does not have to be overtly sexual. Sexual harassment includes, for example, harassment of members of one gender even in a non-sexual way. For example, if the men in workplace grease the tool box handle of the women who work there, they have engaged in sexual harassment.

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Sexual harassment is happening to me. Can I file a lawsuit?

You could file a lawsuit, but to win you must prove that the unwelcome sexual advances, requests for sexual favors or offensive conduct based on sex must:

    * adversely affect your employment;
    * unreasonably interfere with your work performance or
    * create an intimidating, hostile or offensive work environment.

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I am afraid to go to work because of the harasser. Is that sexual harassment?

Probably, but every situation is different. Whether the sexual harassment is enough for you to win a lawsuit depends on whether it is:

    * verbal or physical harassment;
    * a one time or repeated event;
    * mild or severe sexual harassment; or
    * isolated or pervasive sexual harassment;

A single, severe instance of physical harassment can be enough to win a lawsuit. If a reasonable victim of the harassment was afraid to go to work and could not perform her job around the harasser, then you may be able to prove unlawful sexual harassment.

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When does the harasser cross the line of unreasonably interfering with my work?

Judges instruct juries to find in the favor of a sexual harassment victim if the interference from the sexual harassment with the victim’s work is unreasonable. The reasonable victim rule is sometimes described as the “reasonable woman” rule. This term is a bit misleading, since both men and women can be victims of sexual harassment. However, the term means the courts will use a reasonable female's view of the sexual harassment when deciding whether the interference has become unreasonable for a women.

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The person harassing me is another woman. Is she guilty of sexual harassment?

“Same sex” harassment, or sexual harassment by someone of the same gender, is unlawful if it is sexual in nature or because of sex. However, the law does not protect a person harassed because of a preference for member of the same sex as themselves.

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When is same sex sexual harassment unlawful?

It depends on the facts. Consider three situations. All involve guys spending weeks together on an oil rig in the Gulf of Mexico. In the first situation, they harass an effeminate, male co-worker with sexual pranks, taunts and jokes and go so far as put a vulgar, sexually explicit picture of him on the lunch room wall. Assuming that the harassment is sufficiently severe or pervasive, it is almost certainly unlawful, because it is sexual in nature. The fact that the harassment is coming from other men does not make it lawful.

However, suppose that the same victim is openly gay and that the harassment is directed at him solely because of his sexual preference. In that case, much of the same conduct would not be unlawful, since it is not unlawful to harass someone because of their sexual preference. That does not make it right, but under current law, in most places it sexual preference harassment is not unlawful.

The hard case is where the harassment is sexual in nature or based on sex, but directed at a victim who prefers a sexual relationship with a member of his or her own sex. In that case, the jury must decide if the harassment is based on or because of the victim’s sex and not her sexual preference. This is a very difficult situation because the perpetrator’s motive is invisible.  Unless he or she admits to an unlawful motive, the victim may not be able to prove unlawful discrimination.

The distinction between unlawful “same sex” harassment and lawful sexual preference harassment is almost impossible to make, much less justify. The distinction is not meaningful. Sexual preference harassment is just as bad as any other type of sexual harassment and sometimes worse. Sexual harassment law should prevent it, but currently does not.

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The harasser is a co-worker. Can I sue the company for sexual harassment?

As a general rule, you cannot hold the company responsible for a co-worker’s harassment unless the company

        1) did not give you a way to complain about the co-worker’s harassment or,

        2) failed to respond to your complaint in a meaningful way.

The idea is that the law will not hold a company responsible for something that it does not know about and therefore cannot control.  The law will only hold the company responsible for sexual harassment by a co-worker if it fails to prevent a known harasser from harassing again, or if fails to give employees a way to report co-worker harassment. In other words, if you unreasonably do not complain about a co-worker harassment, you cannot hold the company responsible for it.

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What about harassment by a supervisor? I would worry about reporting my supervisor’s sexually demeaning jokes and comments for fear of retaliation.

A company is responsible for harassment by your supervisor that involves a tangible, adverse employment action, whether or not you complain and whether or not it knows about the harassment.

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What is a tangible, adverse employment action?

That is a highly defined legal term that basically involves some sort of economic loss. The most obvious example is the demotion or termination of an employee who does not submit to a supervisor’s sexual advances.  A transfer or shift change can also be a tangible, adverse employment action if it involves significantly worse working conditions.

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Why can I make a company pay for my supervisor’s harassment, but not harassment by a co-worker?

The theory for holding a company liable for supervisor sexual harassment involving a tangible, adverse employment action is that, when the company gives the supervisor power to hire or fire or otherwise affect the terms and conditions of employment, the company is allowing supervisor to act as the company. In that case, the company needs to to select and train supervisors wisely, or else face the consequences for the supervisor’s harassment.

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My supervisor suspended me without pay for a month, but the company investigated and found out that he did that because I refused to put up with his disgusting behavior and paid me back my lost wages. Is that a tangible, adverse job action.

Yes. The law recognizes that having to go without pay, especially when it is not clear if the company will, in fact, correct the supervisor’s unlawful behavior, is a tangible, adverse action.

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What if my supervisor is harassing me but does not do anything that takes money out of my pocket? Do I have to complain about him just like a co-worker?

As a general rule, yes. The law does not look at supervisor harassment that does not involve a tangible, adverse employment action as conduct of the company. In that case the law puts the burden on the employee to either complain about the harassment or else prove that it was reasonable not to complain.

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A friend of mine decided to quit her job rather then put up with any more harassment or go through the agony of complaining about the incredibly hostile environment that her boss created. Is she out of luck because she did not complain about the boss?

Not necessarily.  If a reasonable person in your friend’s position would have quit her job under those circumstances, then the law may treat the supervisor as having terminated your friend. In that case, your friend may be able to prove that she suffered a tangible, adverse employment action, just as if she had been terminated outright.

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Does that mean all you have to do is quit and then you can sue the company for supervisor sexual harassment?

No. Being forced to quit is known as a “constructive discharge.” When an employer does not actually fire you but makes or permits your working conditions to be so bad that a reasonable person in your shoes would feel compelled to resign, the law will treat the resignation as a discharge. You should definitely see an attorney before you resign if you plan to file suit for sexual harassment, however, because you will have the burden of proving a constructive discharge. It can be a heavy burden.

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The harasser is a customer. Is that still sexual harassment?

Any unwanted sexual conduct that interferes with your employment is sexual harassment. Generally speaking, harassment by a customer is like harassment by a co-worker.  It is unlawful unless you unreasonably fails to make a complaint to make the harassment stop.

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The harasser is one of the company’s best customers. Is unreasonable not to complain about the customer’s conduct?

Probably.  You may have to complain if you want the harassment to stop. The starting point is to find a copy of your employer’s sexual harassment policy. If your employer does not have one then your failure to complain is probably reasonable. Even then, if you can approach the owner about this, seriously consider doing so, with the advice of an attorney. The most effective way to stop harassment is with an appropriate complaint.  However, if you have seen other employees complain about harassment and it does not stop, then a decision not to complain about the customer’s harassment is probably reasonable.

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My employer has a complaint process. Do I really have to complain about a customer?

Yes, if you want the harassment to stop. Read the complaint process and do your best to use it. They generally work.

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I am afraid to complain because I am afraid that the company will retaliate against me. Is it reasonable not to complain for that reason?

By law, your employer cannot retaliate against you for making a complaint. In addition, an effective sexual harassment policy should state that retaliation is prohibited. Most courts will therefore consider a failure to complain unreasonable, unless you have good reason to believe that a complaint would be futile.

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At my company everyone knows that the employer protects the harasser and looks the other way when the harasser gets back at the co-worker or customer who complained. What can I do under those circumstances?

You have two choices. First, you can file suit to make the harassment stop. In that case, you will have to prove that your choice not to complain was reasonable, based on proof that the complaint process was futile in the case of other employees. Second, you can file a complaint and, if the sexual harassment does not stop or you are a victim of retaliation, you can file suit for both sexual harassment and retaliation. 

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What should I do in my case?

Consult an attorney to decide the right strategy for you. As a general rule, you are usually better off filing a complaint. First, it may make the harassment stop. Second, experienced employment lawyers will tell you that it is usually easier to win retaliation cases then sexual harassment cases.

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I have been putting up with harassment and have used the employer’s policy to make it stop, but it just keeps going and going. Do I have to quit before I file suit?

No. If the harassment creates an intimidating, hostile or offensive work environment and you have taken reasonable steps to stop it, you can go to court for an order to make it stop. You can also recover money damages for the emotional pain and suffering that you endured. Under some circumstances, such as when you sue your employer in federal court, you can recorver our reasonable attorneys’ fees a well.

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What if the harassment is happening to someone else? Can I file suit against it?

Unless you are a victim of the harassment, the answer is generally, no. The law permits a suit only by a person injured by the harassment. A witness or bystander to the harassment does not have standing to sue to stop it, even if opposed to it.

If, however, the harassment of the other person actually injures you, then you have standing to sue, even though the harassment is directed at someone else. This could be the case if the harassment of the other worker unreasonably interferes with your work or creates a hostile environment for you. Another example is where you help the victim by testifying or taking some other step to make it stop and suffer an adverse employment action as a result. In that case you are a victim of retaliation and can probably files suit.

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What does it mean that the harasser's conduct must be unwelcome?

"Welcome" is the line between unwanted sexual harassment and acceptable sexual attention. Workplace romances are lawful. Unwanted harassment is not. If the sexual conduct is offensive and not appreciated, you should say so. If you stay quiet or play along, the employer and harasser could claim that you did not find it unwelcome.

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If I file suit, what will I win?

The better question to ask is “what have you lost.” A lawsuit is designed to restore you to where you should have been absent the harassment. For victims who succeed at doing that, winning may feel like losing because they had to go through the pain of the harassment and the litigation process and you may end up paying your attorney a substantial portion of what you recover.  That is, most people believe the best thing if for the harassment not to have happened in the first place.

That said, if you bring suit and a jury finds in your favor, federal courts and most state court can order your employer to:

    * stop the harassment,
    * restore you to work if fired or constructively discharged,
    * compensate you for lost earnings and benefits, past and possibly future,
    * compensate you for emotional pain and suffering and
    * in some cases, award reasonable attorneys’ fees.

In some cases the court can award punitive damages as well.

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Do I have a case?

It depends. Always consult an employment lawyer for a specific answer. Even if you have a case, understand that it will cost tens of thousands of dollars in court costs and lawyer time to reach a verdict. In addition, be aware that the company’s attorney almost always tries to prove that you welcomed the sexual attention or were not emotionally harmed by it by digging into your sexual background. This is an infuriating tactic that can make some cases of sexual harassment unbearable for the victim to bring.  

You should consult with an attorney experienced in sexual harassment cases to find out not only what you can recover, but what it will cost you in emotional and financial terms. If you attorney tells you that it may not be worth it to take your employer to court, you should probably listen to him or her. In some cases you may find it is not worth filing suit, even if you have a case.

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What else can I do to stop sexual harassment?

Try to inform the harasser directly that the conduct is unwelcome and must stop. Next, use any employer complaint mechanism or grievance system available. You can also file a charge of discrimination with the EEOC or similar state agency.

The law considers prevention to be the best tool to eliminate sexual harassment in the workplace. As the EEOC suggests:

Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

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Are there any other resources for preventing or recovering from sexual harassment?


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Where can I find more information about sexual harassment at work?

Mel has collected Questions and Answers, Wiki articles and Blog articles about sexual harassment at work.  If you still cannot find the answer to your question, Ask mel and we will send your question to attorneys in your state.

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I want to consult an employment attorney about making sexual harassment stop where I work. Do you have any suggestions?

If your dispute is based in Maryland or the greater Baltimore area, you can contact Mary Keating, the author of this article.  You can schedule a consultation with Neil Klingshirn if you are in Northeast, Central or Southeast Ohio (that is, near Akron, Canton, Cambridge, Cleveland, Columbus, Lorain, Marietta, Youngstown or Wooster Ohio).

If you live live elsewhere, we suggest that you:

Most attorney directories and referral services provide only the attorney's name and contact information. Therefore, you may need to do some more research. As a general rule, the best employment attorneys:

  • Write and speak on employment law topics;
  • Are recognized by their peers (for example, are listed in Super Lawyers or have "AV" ratings); and
  • Are Board Certified in employment law in those states that offer specialty certification.

On mel, you can see who has contributed articles and answers to mel, as well as the quality of that work.

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