Although sexual harassment can carry severe legal consequences it is still a serious problem in workplaces across the United States. As San Diego employment lawyers, we understand how difficult it can be to cope with such a situation. This blog post will explain what sexual harassment is from a legal point of view, and what your options are.
First of all, sexual harassment doesn’t necessarily include a sexual component. The Fair Employment and Housing Act defines sexual harassment as conduct including sexual and gender harassment, but also harassment based on pregnancy, birth or associated medical conditions.
There are two main forms of sexual harassment punishable by law:
Quid pro quo – in this type of sexual harassment, an employer’s sexual demands represent the main reason behind his or her employment related decision.
Hostile work environment – the employee is subjected to unwelcome sexually suggestive behavior, whether verbal or physical, to the point that it affects his or her ability to work.
When determining whether you are being sexually harassed at work you should take into account several key words used in the definition of sexual harassment.
The first is unwelcome. For it to be unwelcome, it has to be clear that the behavior is unwanted. You need to make it clear to the harasser – whether verbally, in written form, or through your actions, that you are not okay with his or her behavior, and that you want the behavior to stop.
The second is severe. Isolated comments or one-time incidents of little consequence are not considered sexual harassment. This means that a request for a date or sexual advances that only occur once, although inappropriate, will most likely not be considered harassment. However, some one-time incidents can be serious enough to fall under the definition of sexual harassment.
A third term is pervasive. Less severe harassment behavior which takes place repeatedly, over time, can fall in this category. Minor separate incidents can add up to sexual harassment if they affect working conditions and your ability to work.
The last key phrase is affects working conditions. If you have been demoted, evaluated poorly, reassigned to a less desirable position or you have been refused a promotion because you rejected sexual advances, then the sexual harassment has affected your working conditions.
However, if the employer or employee hasn’t qualified for any of these offenses (yet), it doesn’t mean that his or her behavior hasn’t affected your working conditions. Creating a hostile or offensive environment also falls under this category, and any actions, even repeated comments of sexual nature, which lead to a decrease in your performance, are considered sexual harassment. Similarly, refusing professional advancements because it would put you in closer contact with the harasser is also a sign that you should contact one of our employment lawyers in San Diego to file a case against the harasser.
Remember that the harasser’s actions may not just affect you; it may be something that makes reasonable persons of your gender feel the same way.
The Fair Employment and Housing Commission includes a list of unlawful conducts, some of which we present below:
Verbal and Written –
Requesting sexual favors and dates;
Threatening someone for rejecting sexual advances;
Rumor-spreading regarding someone’s personal life;
Addressing comments to someone about their body or clothing;
Offering benefits in exchange for sexual favors;
Sexual or derogatory jokes, slurs or comments;
Physical
Inappropriate touching of someone’s body or clothes;
Unwelcome hugging, stroking, patting or kissing;
Touching someone without their consent;
Impeding someone’s movements;
Non-verbal:
Staring at someone’s body;
Gestures and facial expressions of a sexual nature;
Following someone;
Visual
Posting, displaying, sharing or showing pictures, drawings and any other visual materials of a sexual nature.
As we specified above, sexual harassment is not necessarily sexual. Gender harassment is also common in the workplace. If you work in an environment dominated by the opposite sex, you may be subject to criticism, verbal abuse or sanctions despite the fact that your performance is as good as that of all your colleagues. This is a sign of gender harassment.
When it comes to who falls victim of such behaviors, it appears that women are more likely to be subjected to sexual harassment. In 2007, 84% of all sexual harassment cases opened with the Equal Employment Opportunity Commission involved female workers who were harassed by male peers and/or superiors – as opposed to only 16% of cases opened by men. However, it is believed that the number of sexual harassment cases where a male falls victim is in fact greater, but less likely to be reported.
If you feel that you are being sexually harassed at work, you have a number of options:
1. Make the harasser understand that his or her behavior offends you and that you want it to stop. Refuse any invitations and ask him or her to stop, both verbally and in writing.
2. Keep records. Write down dates, places, witnesses and what happened. Encourage others in the same situation as you to do the same thing. Keep the records somewhere safe, not at work.
3. Report the harassing behavior. It is not always possible to do so but if you can, you should tell your superiors or address a written complaint to the Human Resources department. According to the law, the employer is liable if they are aware of what is happening and they do not do anything about it. They are required to take immediate corrective measures in order to stop the harassment. Keep copies of any communications you send to and receive from the human resources department.
4. File a complaint with a Federal Agency within 300 days. In order to file a lawsuit for sexual harassment, you need to first file a complaint with the federal Equal Employment Opportunity Commission or with the Fair Employment and Housing Commission.
Sexual harassment can often be difficult to handle. You don’t have to go through it alone. Our employment lawyers would be happy to help. We can provide you with legal assistance and moral support during the proceedings. Don’t be a silent victim. Encourage others to step forward as well and help us eradicate sexual harassment in the workplace.
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