Sexual harassment is prohibited under both federal and state laws. It is a type of sex discrimination that violates Title VII of the Civil Rights Act of 1964, a federal statute that covers employers that have a minimum of 15 employees. Although many people assume a victim and perpetrator must be opposite sexes, or that the perpetrator is most often male, a victim doesn’t have to be the opposite sex of the perpetrator, and perpetrators can be of either sex or any gender identity. For example, a female supervisor who watches pornography in an open office space during work hours and makes frequent lewd jokes to male employees may be subject to a claim of harassment by a transgender employee who is emotionally distressed by this behavior.
Quid Pro Quo Harassment
The most commonly recognized form of sexual harassment involves quid pro quo harassment, in which a supervisor propositions a subordinate for sexual favors in exchange for a promotion, salary raise, or favorable shift assignment. Alternatively, quid pro quo harassment occurs when a rejection of a supervisor’s sexual advances results in a tangible loss of job benefits.
Sexual harassment does not occur only to women. Men can be harassed too.
If an employee is successful in a sexual harassment claim, he or she can recover compensatory damages, including medical expenses, economic losses, loss of enjoyment of life, and back pay. In certain cases when an employee can establish an employer’s malice or reckless indifference, punitive damages may be appropriate as well.
Hostile Work Environment
In other cases, sexual harassment does not involve a direct request for sexual favors in exchange for a job benefit. Instead, it consists of conduct that is so severe or pervasive that it undermines an individual’s job performance or changes the terms and conditions of their employment. This is known as hostile work environment harassment. Recurring episodes of unwelcome touching, lewd gestures, or sexual comments or jokes may support a hostile work environment claim, among other examples. A severe incident such as a sexual assault may create a hostile work environment by itself due to its severity.
A harasser who creates a hostile work environment need not be the victim’s supervisor. They can be the employer’s agent, a supervisor in a different department, a coworker, or a customer. A victim can be anybody affected by the offensive conduct. Harassment does not necessarily have to be accompanied by economic injury or an adverse employment action, like demotion or loss of benefits.
However, the harasser’s conduct must be unwelcome. If a victim banters with a harasser who makes sexual jokes, the employer can use this behavior as evidence that undercuts a sexual harassment claim. The victim should tell the harasser the conduct is unwelcome and ask him or her to stop. Also, he or she should use whatever grievance system is available through the employer before filing a complaint with the Equal Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws.
An employer may not retaliate against an employee for asserting their rights or reporting discrimination or harassment.
Retaliation includes taking any adverse employment action against an employee who has asserted his or her right against discrimination. It is also unlawful for an employer to retaliate against a victim of sexual harassment for complaining to human relations, following grievance procedures, or filing a discrimination charge.
An employer also may not retaliate against someone who assists with an EEOC investigation. For example, a coworker of an alleged victim may be asked to offer testimony in connection with a claim of sexual harassment. That coworker cannot be punished for offering truthful testimony, even if it corroborates the victim’s claims against the employer.