Sexual Harassment

A refusal to hire a woman because she is female is a clear example of sex discrimination and is prohibited under Title VII. Congress has also created laws that prohibit discrimination against women due to pregnancy.

Title VII also protects employees against sexual harassment at work. Sexual harassment can take many forms. For our purposes, we'll review quid pro quo  and hostile-work environment claims.

Quid pro quo comes from the Latin phrase "one thing in return for another." Quid pro quo sexual harassment involves situations where sexual favors are demanded in return for job opportunities, promotions, salary increases, etc.

As you might imagine, one party must have power or authority over the other because coworkers typically don't have the ability to hire, fire, or promote their fellow workers. 

Hostile-environment harassment occurs when there is a pattern of sexually offensive behavior that affects the workplace. Because most people are typically smart enough to avoid voicing the "this for that" statements necessary to prove quid pro quo harassment, hostile-environment claims are much more numerous and commonplace in the workplace today. An employee has a valid claim for this type of harassment when sexual talk, behavior, or imagery becomes so pervasive that it interferes with the employee's ability to work to his or her best ability. Some (and perhaps even a great deal) of sexual jokes or behavior may be acceptable in certain contexts, so courts look at these cases on a case-by-case basis. Courts look at the nature and frequency of the conduct and whether or not it interfered with the victim's work performance.

Most jurisdictions have a two-part test for harassment. It requires a determination that 1) a reasonable person would find the environment to be objectively hostile, and 2) that the victim subjectively found the conduct to be severe or pervasive. This test was designed to ensure that a hyper-sensitive individual could not prevail on a claim for harassment and also to protect an employer when a "victim" who participated in the behavior later feigned offense.

In early 2019, New York passed a law that eliminates the need for the harassment to be "severe or pervasive." Read this article on the law and its effects. Lawmakers argued that this law was needed because some cases had been dismissed because the judges didn't believe that the comments or even groping was severe. Similar laws are likely to spread to other states.

Harassment by Supervisors

For the employer to be held liable for a supervisor's harassment, the supervisor normally must have taken a tangible employment action against the employee. This means that the supervisor fires, demotes, refuses a promotion, or reassigns the victim to a position with drastically different responsibilities. As you'll read in this Atlantic article about the ineffectiveness of HR departments to curb harassment, the U.S. Supreme Court established what is known as the "Ellerth/Faragher affirmative defenses." This defense, used by employers to avoid liability for the harassment of its supervisors requires:

1. That the employer took reasonable care to prevent and promptly correct any sexually harassing behavior, and
2. That the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.

If the employer can prove both elements, it will not be held liable for a supervisor's harassment. As a result, employers have written policies to prohibit harassment and discrimination. Employers usually hold an annual meeting with employees to review the policies and should ensure that all employees know that they will not be punished for making a complaint to HR. Failing to do so will usually require analysis of the next section - retaliation.

Retaliation by Employers

Employers sometimes retaliate against workers who report sexual harassment on the job.  Retaliation can take many forms, including:

1. Firing
2. Demotion
3. Reassignment to a less-desirable position
4. Changing the terms of employment.

In a retaliation claim, the victim claims that he or she suffered a harm as a result of making a harassment (or discrimination) claim. The plaintiff must show that the retaliatory conduct would dissuade a reasonable worker from making a claim of harassment or discrimination. This is interesting because the person making the retaliation claim does not have to prove actual damages; rather, showing that the action the employer took would dissuade others from making claims. Also, retaliation can occur with employees that did not make the original complaint, but assisted in the investigation of the other employee's complaint.

Harassment by Co-Workers and Nonemployees

An employee can always bring a lawsuit against coworkers that create a hostile work environment. However, many employees seek damages from the employer for a number of reasons. An employee can file a claim against the employer for harassment by coworkers and even nonemployees if the employer knew or should have known about the harassment and failed to take any remedial action to prevent the harassment. 

Same-Gender and Sexual Orientation Harassment

If you are sexually harassed by a member of your same sex, you may still be able to bring a lawsuit of sexual harassment. After a major case in 1998 established this rule, courts use the same analysis for same-gender harassment as any other type of harassment claim.

In addition to Title VII, many states have passed laws that prohibit discrimination based on sexual orientation and identity in employment and housing decisions. Further, many private companies have established nondiscrimination policies that include orientation. 

Conclusion

The #MeToo movement of 2018 brought harassment to the forefront of national discussion. While some argue that the movement hurt women's opportunities in the workplace, most feel it has been an overwhelming positive to protect women's rights. Should you experience harassment, you may file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) by using this link. Note that under the federal rules, you have 180 days from the date of harassment to file the claim. Idaho extends this period to 300 days. The EEOC will investigate your claim, interview witnesses, and release its findings in a mediation process. It may facilitate a settlement with your employer or find that there was no harassment. In the event of the latter decision, the EEOC will give you a "Notice of Right to Sue," which allows you to bring a private lawsuit, in which case you can retain an attorney and seek redress through the court system.