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What can recent events teach us about sexual harassment? Minimize the chances of being a victim

In recent months, news about sexual harassment in the workplace has been on the front pages of every major newspaper and at the top of the hour on every major television news program in the United States. Unfortunately, the current spate of coverage has been largely without context or depth. Widespread media attention has failed to illuminate much information, if any, about what types of misconduct actually constitute sexual harassment in the workplace. In an effort to shed some much-needed light on the subject, let’s examine what actions the courts have found to amount to actionable sexual harassment.

Courts have defined two forms of sexual harassment: “quid pro quo harassment” and “hostile environment harassment.” “Quid pro quo” is the Latin phrase “this for that.” In a “traditional” quid pro quo case, a supervisor conditions a subordinate’s future or continued employment and/or other potential employment-related financial benefits (e.g., promotions, raises, bonuses, vacations) on her agreeing to have sex with him and/or otherwise provide him with sexual favors.

By comparison, harassment in a hostile environment does not necessarily involve the extortion of job benefits in exchange for sexual favors. As the category description suggests, with this type of harassment, a supervisor or co-worker engages in conduct that makes the workplace unbearably toxic for the victim. This type of abuse can range from repeated verbal taunting to physical assault.

You should be aware that allegations of hostile environment sexual harassment do not require the harasser to express sexual attraction or romantic interest in the victim. As in similar cases involving racial or religious harassment, the law protects employees from having their work environment adversely affected as a result of gender-based comments or conduct. Whether the harasser feels or was sexually attracted to the victim is not a determining factor. The most prominent questions are (1) whether the harasser has made the environment so toxic that a “reasonable person” would find it offensive and (2) whether the harassment stemmed from envious gender-based considerations.

Under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, a business remains strictly liable for proven quid pro quo harassment perpetrated by its managers. Therefore, if a victimized employee can establish through a preponderance of direct or circumstantial evidence that her supervisor subjected her to quid pro quo harassment, then the employer has to bear the brunt of any financial damages awarded. .

Conversely, an aggrieved worker who complains of harassment in a hostile environment under Title VII must first inform management that his supervisor and/or co-worker have subjected him to a hostile work environment. If the harassment does not involve a tangible employment action, then the affected employee must essentially show that he notified management of the harassment and that, despite such notification, the harassment continued. An employee who unreasonably fails to file an internal complaint with management will likely be barred from pursuing a hostile environment claim in court. Accordingly, as a general matter, a successful plaintiff seeking a hostile environment cause of action must have evidence that (1) the underlying harassment reported actually took place, and (2) although they notified their employer of the hostile environment, the continued abusive conduct.

Public complaints filed by female subordinates against female candidates for the United States Supreme Court and for the US Presidency can offer critical insight into the respective suitability of female candidates (or lack thereof) for high office. While her accounts are consequently of national significance, the scourge of sexual harassment in the workplace remains an even bigger national issue. Sexual harassment can and does affect women workers at all economic levels, from minimum wage to “seven figures.” (While higher income certainly provides a greater measure of protection against such abuse, it does not invariably protect workers at the top end of the economic ladder.)

Over the past 15 years, women have filed eleven to sixteen thousand sexual harassment complaints annually with the EEOC and state and local Fair Employment Practices Agencies (“FEPAs”). For each of these complaints, dozens, if not hundreds, of women experience similar abuse at work but do not file administrative or judicial complaints. According to a November 15 Washington Post-ABC News poll, twenty-four percent of women surveyed reported that they had been personally harassed at work, and nearly two-thirds of all respondents concluded that sexual harassment in the workplace It is a continuing problem in this country.

If you are faced with a situation involving quid pro quo and/or harassment in a hostile environment, you can take steps to better navigate the harmful landmines at work. As an initial matter, you should report the harassment to the appropriate management officials at your workplace as soon as possible. If you first inform this manager of your situation orally, then you’ll want to follow this discussion with a written summary that you make sure he or she receives. (Don’t rely solely on email. In addition to emails being deleted or lost, it’s all too easy to deny having received or read an email. Hand over a hard copy.) On a related note, if the situation is severe and/or continues unabated, you want to immediately consult an attorney and/or contact the EEOC or FEPA.

Soon after filing your complaint, you should be prepared to meet with management to discuss your situation. He should not refuse to participate in such a meeting, even if it has the prospect of being unpleasant. You have to do everything within reason to allow your company the opportunity to rectify this situation as much as possible. Also, keep in mind that you cannot dictate the terms of how the employer addresses your complaint (for example, terminating the alleged harasser). However, if your employer is not responsive enough (ie, does not take steps to stop the harassment), you can raise your inappropriate response with your attorney and/or with the EEOC or FEPA.

Keep a private diary or diary that describes what the harasser says or does and what management does in response to your complaint. Additionally, if there are written materials or other documents (eg, sexual emails, pornographic photos) disseminated as part of the underlying harassment, you should make an effort to obtain copies of these materials and keep a copy at home. Notes and documents can be particularly helpful to you and your lawyer if your matter has to go to court.

You also need to prepare for the possibility of management “back on the bandwagon” after receiving your harassment complaint. Don’t expect sympathy or pity from your colleagues, no matter how long or how well you’ve worked with them in the past. If your supervisors and/or co-workers respond with understanding, you should consider their reactions a bonus! Seek emotional support from your network of friends and family outside of the workplace. Don’t expect to receive it at work.

Finally, she must operate at work as “Caesar’s wife.” Having filed a complaint, she wants to do everything by the book. It doesn’t matter if a laissez faire attitude permeated the workplace before her. For example, if work officially starts at 9:00 a.m., she should do everything in her power to be at her desk or her station by 8:50 a.m. ready to work all the days. She wants to work so that her performance is so impeccable that no one in management can “legitimately” cite it as a basis for retaliating against her. In short, she should do everything she can to make sure she doesn’t give the company “any ammunition to shoot you” after you file her sexual harassment complaint.

Hopefully, neither you nor your loved ones will have to endure serious sexual harassment at work. However, if you encounter this abuse, you can take steps to improve the situation and seek a remedy. Do not accept abuse. Do not give up. You deserve equal opportunity and a harassment-free workplace.

Similarly, if you have encountered other difficulties in the workplace, you can also effectively seek justice. You don’t have to endure abuse in silence. You have rights!