In recent months, news accounts concerning sexual harassment in the workplace have splashed across the front pages of every major newspaper and at the top of the hour of every major television news program in America. Regrettably, the avalanche of current coverage has largely occurred without context or depth. The widespread media attention has failed to illuminate much, if any, information on what types of misconduct actually constitute workplace sexual harassment. In an effort to shed some needed light on the subject, let us examine what actions the courts have found amounts to actionable sexual harassment.
The courts have defined two forms of sexual harassment: “Quid pro quo harassment” and “hostile environment harassment.” “Quid pro quo” is the Latin phrase “this for that.” In a “traditional” quid pro quo case, a supervisor conditions a female subordinate’s future or continued employment and/or other prospective employment-related financial benefits (e.g., promotions; raises; bonuses; vacations) on her acquiescing to have sex with him and/or otherwise providing him with sexual favors.
In comparison, hostile environment harassment does not necessarily involve the extortion of job benefits in exchange for sexual favors. As the category description suggests, with this type of harassment a supervisor or coworker engages in conduct rendering the workplace unbearably toxic for the victim. This type of abuse can range from repeated verbal taunting to physical assaults.
You should keep in mind that hostile environment sexual harassment complaints do not require that the harasser express a sexual attraction toward or romantic interest in the victim. Just as in analogous cases involving racial based or religious based harassment, the law protects employees from having their work environment adversely affected as a result of comments or conduct based on gender related considerations. Whether the harasser is or was sexually attracted to the victim is not a determinative factor. The more salient questions are (1) whether the harasser has made the environment so toxic a “reasonable person” would find it offensive and (2) did the harassment stem from invidious gender based considerations.
Under the Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, a company remains strictly liable for proven quid pro quo harassment perpetrated by its managers. Thus, if a victimized employee can establish through a preponderance of direct or circumstantial evidence that her supervisor subjected her to quid pro quo harassment, then the employer has to bear the financial brunt of any damages awarded to her.
In contrast, an aggrieved worker complaining of hostile environment harassment under Title VII must preliminarily advise management that her supervisor and/or her coworker have subjected her to a hostile work environment. If the harassment does not involve a tangible employment action, then the affected employee must essentially show that she notified management of the harassment and that despite said notification the harassment continued. An employee who unreasonably fails to lodge an internal complaint with management will likely find herself precluded from proceeding with a hostile environment claim in court. Accordingly, as a general matter, a successful plaintiff pursuing a hostile environment cause of action must have evidence that (1) the underlying, complained of harassment actually took place, and (2) although she notified her employer of the hostile environment the abusive conduct continued.
Publicized allegations brought by female subordinates against candidates for the United States Supreme Court and for the United States Presidency may offer critical insight into the candidates’ respective fitness (or lack thereof) for high offices. While their accounts consequently have national importance, the scourge of sexual harassment in the workplace remains an even more important national issue. Sexual harassment can and does affect female workers at every economic level, from minimum wage to “seven figures.” (While higher income undoubtedly provides a greater measure of protection from such abuse, it does not invariably shield workers at the upper end of the economic scale.)
Over the last 15 years, women have filed eleven to sixteen thousand sexual harassment complaints annually with the EEOC and state and local Fair Employment Practice Agencies (“FEPAs”). For every one of these complaints, dozens, if not hundreds, of women experience similar abuses at work but do not file administrative or judicial complaints. According to a November 15 Washington Post-ABC News poll, twenty-four percent of the polled women reported they had been personally harassed at work, and nearly two-thirds of all responders concluded workplace sexual harassment constitutes an ongoing problem in this country.
If you face a situation involving quid pro quo and/or hostile environment harassment, you can take steps to better navigate through the pernicious landmines at work. As an initial matter, you need to report the harassment to the appropriate management officials at your workplace as soon as possible. If you first inform this manager of your situation orally, then you want to follow up this discussion with a written summary which you make sure he or she receives. (Do not merely rely on e-mail. In addition to e-mails being deleted or getting lost, it is too easy to deny having received or read an e-mail. Deliver a hard copy.) On a related note, if the situation is severe and/or continues unabated, you want to consult promptly with an attorney and/or contact the EEOC or a FEPA.
Shortly after you lodge your complaint, you should be prepared to meet with management to discuss your situation. You should not refuse to participate in such a meeting even if it has the prospect of being unpleasant. You have to do everything within reason to allow your company an opportunity to rectify this situation as much as possible. Also, you should keep in mind you cannot dictate the terms of how the employer addresses your complaint (e.g., terminating the alleged harasser). Nonetheless, if your employer fails to act in a sufficiently responsive manner (i.e., taking requisite steps to stop the harassment), you can raise its inadequate response with your attorney and/or the EEOC or FEPA.
Keep a private diary or journal describing what the harasser says or does and what management does in response to your complaint. Additionally, if there are any written materials or other documents (e.g., sexual e-mails; pornographic photographs) disseminated as part of the underlying harassment, you should endeavor to obtain copies of these materials and keep a copy at home. The notes and the documents may prove particularly helpful to you and your counsel if your matter has to proceed to court.
You also have to prepare yourself for the possibility of management “circling the wagons” following its receipt of your harassment complaint. Do not expect sympathy or compassion from your colleagues, irrespective of how long or how well you have worked with them in the past. If your supervisors and/or coworkers respond with understanding, you should consider their reactions as a bonus! Look for emotional support from your network of friends and family outside of the job site. Do not expect to receive it at work.
Finally, you need to operate at work like “Caesar’s wife.” After you have filed a complaint, you want to do everything by the book. It does not matter whether a laissez faire attitude permeated your workplace beforehand. For example, if work officially starts at 9:00 a.m., you should do everything in your power to be at your desk or your station at 8:50 a.m. ready to work every day. You want to strive to have your performance be so impeccable that no one in management can “legitimately” cite it as a basis for retaliating against you. In short, you should do everything feasible to assure you do not give the company “any ammunition to shoot you with” after you have filed your sexual harassment complaint.
Hopefully, neither you nor your loved ones will have to endure serious sexual harassment at work. If you do encounter this abuse, though, you can take steps to ameliorate the situation and to seek a remedy. Do not acquiesce to mistreatment. Do not give up. You deserve equal opportunity and a harassment free environment at work.
Similarly, if you have encountered other workplace difficulties, you too can effectively pursue justice. You do not have to endure mistreatment in silence. You have rights!