Sexual Harassment in the Workplace
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.
Employers bear the burden of proving sexual harassment didn’t occur or that it happened for nondiscriminatory reasons. If an employee is successful, he or she can recover compensatory damages, including medical expenses, economic losses, loss of enjoyment, 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.
Supervisors or managers that perpetrate quid pro quo types of harassment are considered to be acting directly on behalf of an employer. However, sexual harassment can be far more subtle and insidious, including any type of unwelcome sexual advance or other sexually charged conduct that affects an individual’s job performance or creates a hostile work environment.
A harasser need not be the victim’s supervisor. It 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. However, it can be difficult to prove harassment when the perpetrator is a coworker or a low-level supervisor who does not have direct hiring or firing power. State laws and other federal statutes may offer stronger protections. Harassment does not necessarily have to be accompanied by economic injury or an adverse employment action, like demotion or loss of benefits.
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.
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.