Our attorneys help victims of sexual harassment or hostile treatment in the workplace in Washington DC, Maryland and Northern Virginia.
What is Sexual Harassment?
Sexual harassment is a form of sex-based discrimination, but unlike “standard” discrimination, where the employee is treated in an unfair or different manner simply due his or her sex, in cases of sexual harassment the action carries with it specific overtones of a sexual nature e.g. physical advances, flirting or comments or in some cases, physical “contact” that is offensive. The Equal Employment Opportunity Commission (EEOC) defines the mechanism of sexual harassment as follows: “unwelcome sexual advances, requests for sexual favors, and/or other verbal or physical conduct of a sexual nature when the conduct materially affects an individual’s employment, his or her ability to work or perform their duties free from interference, or creates an intimidating, hostile or offensive work environment.”
Sexual harassment can be a particularly challenging to detect or monitor because what some consider as being friendly or complimentary, others may consider offensive. Consequently, although many employees, coworkers, and managers generally view comments or jokes about sex or one’s physical appearance as being harmless or funny, they should be discouraged.
Who Can Be a Victim? Who Can Be a Harasser?
Contrary to popular belief, both men and women can be victims of sexual harassment. Additionally, federal, as well as state and local law, recognize a claim for harassment even where the harasser is of the same gender/sex, meaning a man can be a harasser of another man and a woman of another woman.
Keep in mind the harasser does not always have to be one’s “boss.” An employer can also be held responsible for conduct of coworkers, or non-employees e.g. the customer or client, the repairman, the vendor, or anybody whom it exercises some control over, when it does not take appropriate action to end the sexually harassing conduct being committed. For example, the client who makes sexual comments to the receptionist every time he visits the office.
Types of Sexual Harassment
- Quid Pro Quo This type of sexual harassment occurs when a supervisor or one in an authority position requests sex or a sexual relationship, in exchange for special treatment or a benefit to the employee e.g. a promotion, raise, or on the other hand, when the employer does not take action against or penalize the employee due to the relationship
- Hostile Work Environment HarassmentThe conduct taking place at work unreasonably interferes with or alters the employee’s work performance, or creates a hostile, abusive or offensive work environment that the employee cannot tolerate.
- Not always “obvious”While it is generally easy to identify sexual harassment in the “quid pro quo” situation, it is difficult in the case of a hostile environment type claim because different persons have different feelings about what may be “joking around” versus offensive. Court opinions are inconsistent about whether sexual harassment has occurred, sometimes deciding differently in cases with very similar facts.Number of Incidents: Although a single incident may be sufficient to establish a claim for “quid pro quo” harassment, typically a number of incidents over time is required to establish a hostile work environment claim.
- Conduct which might be sexual harassment
- Unwanted sexual advances, asking for dates
- Offering one employment benefits in return for sex
- Making or threatening (job) reprisal for rejecting sexual advances
- Visual conduct, e.g., leering, staring, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons or posters (the centerfold);
- Making or using derogatory comments, jokes or slurs
- Graphic verbal commentaries about one’s sex life, or statements concerning one’s anatomy or body, obscene letters or notes to coworkers
- Touching; the infamous “pat” or “tap” in an inappropriate place (e.g. the rear-end)
|The law requires that the conduct be unwelcome and that the complaining employee not be a participant in the events about which he or she is complaining.|
Responding to Sexual Harassment; What To Do?
If an employee believes he/she is the victim of harassment, the law requires that they take action. If he/she feels comfortable enough, speak to the person who is making the comments, etcetera. In some cases the harasser may not realize the impact of their actions. Document the events that he/she believes constitute the harassment. If the employer has a policy and procedure for complaints of sexual harassment, the employee is required to make a report to the officials designated by the employer and follow its procedure or risk losing his/her right to make a claim later on. This is because the law usually requires that the employer have notice and a chance to correct the situation before the employee has a right to bring a lawsuit. If the employer acts promptly and remedies the wrong this may extinguish the employee’s claim.
Training is the key: Make employees aware that certain kinds of conduct are not appropriate for the workplace. “When in doubt, keep it out.” Have a sexual harassment policy and procedure set up to handle complaints of harassment by employees and make sure it is posted in the workplace and outlined in your employee handbook. Investigate and act swiftly on claims of sexual harassment, and document all actions. These steps are necessary in many cases to allow the employer to raise a defense to a charge of harassment. The U.S. Supreme Court has held that employers may only defend themselves in these cases for actions of a supervisor or managerial-level employee by showing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior. Additionally, if the employee did not follow the procedures in place the employer may also argue that it is not liable because the employee did not take advantage of available reporting or remedial measures to complain about incidents of sexual harassment. The U.S. Supreme Court has held that employers may only defend themselves in these cases for actions of a supervisor or managerial-level employee by showing that they took reasonable steps to prevent sexual harassment and made efforts to correct harassing behavior once it became of a problem.
If you need the help of an experienced employment discrimination lawyer, personal injury or insurance attorney in Maryland, Washington DC or Northern Virginia, please contact the Law Offices of Stuart L. Plotnick, LLC in Rockville, Maryland