The United States Equal Opportunity Employment Commission (EEOC), founded in 1965, defines sexual harassment in the workplace as unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person’s job or creates an intimidating, hostile, or offensive work environment.

The scope of sexual harassment can encompass anything from persistent offensive sexual jokes, any type of physical interaction, and indirect sharing of inappropriate material. Sexual harassment has been a persistent problem in the United States amongst both men and women. It is a serious problem that the law seeks to end. Since 1964, sex discrimination clauses under the Title VII of the Civil Rights Act, were created to prevent and lower the rate of sexual harassment occurring in the workplace. However, lawmakers are becoming stricter on a state level. These laws are meant to target the two different forms of sexual harassment recognized by the state and government: quid pro quo and hostile work environment.

Quid Pro Quo Form of Harassment- this type of harassment is when a person, often times the employer or supervisor, subdues his/her employees or those lower in him/her in authority rank, to toleration of sexual harassment. The victim, in this scenario, is submissive as a means of keeping a job, achieving a position, or receiving a job benefit in the form of a promotion or raise. To establish the grounds for a quid pro quo claim, it only takes one occurrence.

Hostile Work Environment Harassment- this includes any unwelcome conduct on behalf of any party. This conduct is usually based on sex and ranges from offensive to abusive working conditions. Courts base this type of harassment on whether the conduct was verbal, physical, or a combination of both. Based on the type of conduct it is important to recognize a pattern. Questions that determine whether there is hostile work environment harassment include, but are not limited to:

1. How often did the harassment occur?
2. Was the conduct aggressive or deliberately offensive?
3. Was the alleged harasser a co-worker or supervisor?
4. Did anyone in the workplace know about or join the harassment?
5. Was this harassment pertained to a single individual or a group of people in the office?

To hold up a sexual harassment case there are two requirements that need to be met:

1. Does the victim believe that he/she was subject to sexual harassment?
2. Does a rational person, if placed in the plaintiff’s position, believe that they were subject to sexual harassment?

Establishing Liability

Similar to that of other cases, there must be a party liable. If there are 15 or more employees the employer is subject to Title VII; however, companies having fewer than 15 employees are under the state’s discretion. Depending on the type of harassment, an employer may be liable for compensatory and punitive damages. The monetary compensation is dependent on who conducted the harassment and what, if any, actions the company took to correct the situation. Important things to keep in mind when establishing liability are:

• Was the harassment committed by the supervisor?
• Does the alleged harasser have the authority to reprimand the employee?
• Was the employer made aware that the employee is uncomfortable? If so, did the behavior change after?
• Does the employer bear witness to the harassment or file a complaint?

Some Words of Advice for Handling the Situation

1. If you are suffering from sexual harassment in the work place, it is important to try to end it personally if possible. Try scheduling a meeting with your employer to discuss the certain things he/she says or does that cross the line or makes you feel uncomfortable.
2. If the employer continues his/her inappropriate behavior remember to document everything and anything pertaining to sexual harassment or anything offensive.
3. If you take any action like writing a letter, make sure you send it from the company email. It is important to have everything documented for if and when you decide to go through legal means of ending the harassment.
4. Always check the employee handbook, if available, to see the steps to handling sexual harassment. Most handbooks dictate to go up the chain of command if no actions are taken to end the harassment.
5. Even though employer retaliation is illegal, it is important to have documentation of your personnel file before you file a complaint. This way you are protected from a claim that your work performance was insubordinate.
6. Always keep the statue of limitations in mind.
7. Send your complaint to the EEOC first. The EEOC is the federal agency that enforces Title VII. After the EEOC conducts an investigation and the company chooses not to file a settlement or you choose not to accept a settlement may you file a Title VII lawsuit.
8. Once you complete the national level of defense, check your state agencies for the different policies applicable to you.

If you are still unsure if you have endured sexual harassment, if you are stuck on a step or need further assistance, call the Law Offices of Rudolph F.X. Migliore, P.C. for a free consultation. We offer experienced, sensitive, and understanding, male and female attorneys you may speak with at any time. An experienced attorney may give you the support you need in this frustrating time. Call today at (631) 543-3663 to speak with someone eager to help.

By Aleksandra Aronova