When you hear the terms “sexual harassment” or “sexual abuse,” you might believe that it is all about sex (unwanted touching, requests for sexual favors, etc.). In fact, the term has a much broader application. Its most accurate name might actually be “gender harassment” rather than sexual harassment because it includes all sorts of abuse that someone might suffer because of their gender (male, female or transgender).
US law has responded at both the state and federal levels. Governments have enacted important sexual abuse protections for workplace victims. Sexual harassment protections enacted under federal law related to two main forms: “quid pro quo” sexual harassment and “hostile work environment” sexual harassment. ”Sex” includes physical gender, gender identity, and sexual orientation.
“Quid Pro Quo” Sexual Harassment
Quid pro quo sexual harassment occurs when someone in authority over you at work seeks sexual favors from you in exchange for a job-related benefit. Alternatively, it can happen if someone in authority over you threatens you with job-related retaliation for refusing sexual favors.
You will not necessarily lose your claim simply because you did not say no. The key question in cases of acquiescence is why you acquiesced. If you did so because you reasonably feared job-related retaliation, you likely have a claim for quid pro quo sexual harassment. If the retaliation you feared was not job-related, you might have another type of claim.
“Hostile Work Environment” Sexual Harassment
With “hostile work environment” sexual harassment, someone at work may target you with unwelcome or insulting sexually suggestive comments, persistent date requests, offensive sexual gestures, displays of pornographic material, repeated and unwanted physical contact, dirty jokes, offensive pranks, intimidating behavior, etc. The motivation for this behavior must be your gender. In most cases, a single incident is not considered hostile work environment sexual harassment. Instead, offenses must occur repeatedly. Nevertheless, a single severe offense might be enough to qualify.
To constitute sexual harassment, the offense or offenses must be cumulatively serious enough to interfere with your ability to perform your job well. Additionally, your employer must be directly or indirectly responsible for the harassment, by allowing bad behavior. Even a vendor, independent contractor or frequent customer can trigger sexual harassment liability if your employer allowed it to go on without moving to protect you.
You can file a sexual harassment claim regardless of your gender. Men have won complaints on many occasions.
Gender Discrimination
It is also illegal for your employer to deny you employment or provide you with disadvantageous employment conditions because of your gender.
The classic example is paying you less for doing the same job simply because you are female. In addition to pay, this discrimination can include hiring procedures, working hours, promotions and demotions, benefits, work schedules, work assignments, transfer posting, vacation, sick pay, performance evaluations, discipline, and termination. The foregoing list is not necessarily exhaustive.
What to Do If You Believe You are Suffering Sexual Harassment
Take the following actions if you believe that you are suffering from sexual harassment:
- Verbally warn the offender. Bring someone with you to serve as a witness to your warning.
- If the verbal warning does not work, issue a written warning. The warning should clearly describe the offending behavior. Keep a copy of it for yourself as evidence.
- Keep detailed and accurate notes about your experiences, including any suspended retaliation by the offender or your employer. Include dates, times, locations, and identities. Describe exactly what happened as well as your reaction. List any witnesses. Get statements from witnesses if this is feasible (sometimes it will not be).
- Make duplicate copies of your notes and keep them in a safe, private place outside of work. This is important evidence.
- Save any written evidence, such as emails and other correspondence about the harassment, especially from the offender. Gather them together with your notes.
- Report the harassment in writing to your supervisor, to HR, or otherwise in the manner specified in your employee handbook. If you must report orally, take accurate notes.
- Under certain circumstances, you might choose to report anonymously, if this is an option available to you. The problem with anonymous reporting is that without details your employer might not be able to stop it, but with details they might be able to identify you.
- Keep copies of all documentation, such as formal complaints you file and any responses you receive.
Above all, contact an experienced workplace sexual harassment lawyer. If you have followed all of the steps listed above, you will already have significant evidence to back up your sexual harassment claim.
Your Legal Remedies
You might need to commence administrative action by filing an administrative complaint under Title VII of the federal Civil Rights Act with the Equal Employment Opportunity Commission (EEOC). This was once mandatory in most cases before you could take your claim to court. Now, you might not be required to file with the EEOC before you can take your claim to court, due to a 2019 US Supreme Court decision.
Nevertheless, filing an EEOC administrative claim first can prevent the employer from defending against your claim based on “failure to exhaust administrative remedies.” If you file a complaint with the EEOC, it will conduct an investigation, which could help your claim due to the EEOC’s extensive investigative resources.
After the EEOC investigates, it will either seek to reach a voluntary settlement with your employer or issue you a Notice of Right to Sue. The latter is more likely. You can request this notice even before the EEOC completes its investigation, and the EEOC might give it to you.
Taking Your Claim to Court
Once you receive a Notice of Right to Sue, you have 90 days to file your claim in federal court. Be careful—if you miss this deadline, your claim might expire.
The Sooner You Seek Legal Counsel, the Better Your Chances of Winning
If you are suffering from sexual harassment in the workplace, you might feel that you have nowhere to turn. Never fear, because at D’Amore Law Group, we are here to help. Consult with us before you file a complaint or agree to any settlement, because many pitfalls await employees who seek to defend their rights under sexual harassment law.
You can discuss your case with an experienced sexual harassment attorney over the phone, by email, or in person at one of our offices in Portland, Lake Oswego, and Bend, Oregon, and Vancouver, Washington.
