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MEL - My Employment Lawyer

Where employees get their rights

Frequently Asked Questions

Sexual harassment  FAQs


Contents

What is sexual harassment?

Is there a difference between harassment by a supervisor and a co-worker?

How much harassment does a reasonable employee have to tolerate?

Why do people sexually harass others?

Should I tell someone if I feel I’ve been sexually harassed?

What if the person harassing me is the one that sexual harassment complaints go to?

Can my employer fire me for filing a complaint?

Does the sexual harassment law protect men from a female’s harassment?

Does sexual harassment law apply to harassment by customers?

What can I do if the harassment continues after I complain?

Can I sue the harasser too?

If I have to sue, what can a court do for me?

 

FAQs about Sexual Harassment

by
Mary T. Keating, Esq.

What is sexual harassment?

Sexual harassment is a form of sexual discrimination, which is forbidden by Title VII of the Civil Rights Act of 1964. Title VII applies to most workplaces with15 or more employees.

Sexual harassment involves unwanted sexual advances, touching, requests for dates or sex, frequent comments, or other behavior that creates an atmosphere riddled with demeaning, insulting or pornographic references to sex or your gender.

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Is there a difference between harassment by a supervisor and a co-worker?

Yes. If a supervisor ties your job or job progression to sexual favors, your company is liable for the harassment. For example, a supervisor may state or imply that your job is at stake if you do not meet his demands for sexual attention. Having a sexual relationship with a supervisor is not a legitimate job condition for any legal job.

Co-worker harassment is different, since co-workers do not have direct control over your employment. Instead, co-worker harassment typically takes the form of a hostile work environment. A co-worker creates a hostile work environment by asking for sexual favors, making unwanted sexual advances or treating you like a sexual object. In that case your company is liable for the co-worker’s conduct only if it permits, encourages, or causes the atmosphere in which the sexual content becomes intolerable to a reasonable employee.

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How much harassment does a reasonable employee have to tolerate?

You should tolerate very little. If someone’s conduct offends you, tell them. That will often make it stop.

Before a court will order your employer to pay you for putting up with a co-worker’s harassment, however, it must be "severe and pervasive". Lewd jokes, ostracism, pornography, and sexual comments may all create an environment where sexually harassing conduct is severe or pervasive. Unless very serious, one incident or isolated comment will not be enough to render the work environment hostile. In addition, you must tell your employer about the co-worker’s harassment before courts will hold your employer responsible, unless the harassment comes from a supervisor.

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Why do people sexually harass others?

Sexual harassment is sometimes, but not always, motivated by sexual desire. Sometimes it is motivated by contempt for or hostility toward one gender. Perhaps some people are pigs who like to intimidate others. Whatever the case, sexual harassment is unlawful. You do not have to put up with it.

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Should I tell someone if I feel I’ve been sexually harassed?

Absolutely. You certainly should let the harasser or harassers know that their behavior is offensive. If that does not help, then you need to take your complaints up the ladder. If your employer has an anti-sexual harassment policy, you should make a complaint using that policy’s procedure. A recent Supreme Court case lets the employer off the hook if the employee unreasonably ignores the policy. Well-designed policies identify more than one possible person to complain to, and explain the kind of investigation that the company will take.

Even if your company’s policy does not require it, the best practice is to write out your complaint, so that you don’t forget anything important, and you have a record of what you said. Keep your complaint factual, but don’t leave out the embarrassing parts. You may want to consider telling at least one trusted work friend about the harassment as well and keep a diary of the harassing conduct and what you did to stop it. Sometimes that is regarded later as convincing proof that you are not making up events after the fact.

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What if the person harassing me is the one that sexual harassment complaints go to?

Good question. Even if the harasser is the company president, you should let him or her know that you consider his or her behavior unwelcome, unpleasant, and unacceptable in the workplace. Again, doing this in writing is a good practice and may make it easier on you if it is difficult to confront the harasser face to face. If the conduct continues despite your complaint, do the next most reasonable thing, such as going to the personnel department, the harasser’s supervisor, or even members of a board of directors.

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Can my employer fire me for filing a complaint?

Not legally. Discipline for filing a complaint or speaking up on someone’s behalf is called retaliation. It is illegal. Some policies state that filing a false claim of sexual harassment may lead to your termination. Your employer will still be guilty of retaliation if it punishes you, however, where you make a good faith claim of sexual harassment, even if the employer is unable to corroborate it, even if the behavior is not so severe as to be sexual harassment, and even if you don’t win on the sexual harassment claim in court.

It is unclear how courts would rule on a retaliation claim if the employer proves that the sexual harassment charge was malicious and false. Unless you have a good faith belief that conduct amounts to sexual harassment, you should not file a complaint.

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Does the sexual harassment law protect men from a female’s harassment?

Yes. Men who are harassed by women can file claims, and men harassed by men (as well as women harassed by women) are protected by the law, so long as the basis for the harassment is the gender of the victim.

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Does sexual harassment law apply to harassment by customers?

Yes, as long as the employer knows about the offensive behavior and has a chance to fix the problem. Customer harassment is a lot like co-worker harassment. Until you speak up, the employer may not have enough reason to suspect that the company’s client is harassing you and making your job miserable.

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What can I do if the harassment continues after I complain?

Keep a journal of your experiences, and keep the journal at home, not at your desk. Notice who else is being harassed, if anyone, and who else is in a position to notice the harassment. Keep copies of all of your complaints, and any written harassment (notes, e-mails, etc.) If you feel that the behavior is keeping you from a deserved promotion, write down the reason for that idea. Keep copies of your performance evaluations.

If you are threatened, take care of yourself first. No job is worth being raped or sexually assaulted. If the behavior is adversely affecting your emotional health, raising your blood pressure too high, or otherwise ruining your happiness, consider leaving the situation (inside the company or out), even if it makes it harder for you to prove a case of sexual harassment. At some point you need to weigh the job against your own well-being.

If the situation does not improve, contact a lawyer, see a counselor if needed, and most importantly, file a timely charge with the equal employment opportunity commission (federal or local). You have 180 days (sometimes a little more, depending on your state) to file an administrative claim with the commission, dated from the last harassing behavior or the adverse job action. Failure to take this step will prevent you in most states from filing a lawsuit later.

You don’t need a lawyer to do file a charge with the commissions. Realize, however, that the equal employment opportunity commissions are too busy to do a thorough investigation on all but a few cases. It is a smart idea to have a consultation with a lawyer, before either of you makes a commitment to pursue a lawsuit.

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Can I sue the harasser too?

Not under Title VII or Maryland law as they currently stand. Sometimes you have state law rights on different theories, such as for assault and battery or intentional infliction of emotional distress. Some states, like Ohio, have sexual harassment laws that allow you to sue the harasser directly. Check with an attorney in your state to find out the extent of your state’s laws.

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If I have to sue, what can a court do for me?

You can ask for monetary damages for your lost wages and benefits, if you lost or left your job because of the harassment. You can also ask the court to require the employer to give you your old job back. You can seek damages to compensate you for your emotional distress and any physical injuries caused by the harassment. (There are limits on these damages, depending on the size of the employer.) In extreme cases, you may also be awarded punitive damages to punish the employer’s bad behavior. Finally, if you win, the employer will be required to pay your attorney’s fees.

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MEL - My Employment Lawyer

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Neil E. Klingshirn
Creator and moderator

 

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