Workplace sexual harassment is defined by the Equal Employment Opportunity Commission as sexual conduct or advances which create an offensive, hostile or intimidating work environment or that unreasonably interferes with your ability to do your job. Sexual harassment includes many different acts, ranging from persistent sexual joking, inappropriate touching or displaying offensive materials. Both men and women can be the victims of workplace sexual harassment. Federal laws and the state laws of New Jersey and Pennsylvania prohibit workplace sexual harassment. The legal team at Swartz Swidler may help you if you have been the victim of workplace sexual harassment.
Types of sexual harassment
Title VII of the Civil Rights Act of 1964 is the federal law that prohibits workplace sexual harassment as a type of sex discrimination. There are two primary categories of sexual harassment, including quid pro quo and hostile work environment harassment.
In quid pro quo sexual harassment, subordinates receive demands by people in authority such as supervisors to tolerate sexual harassment in exchange for keeping a job, getting a job or gaining a promotion. One instance of quid pro quo harassment is enough to sustain this type of claim. By contrast, a pattern of harassment that happens over time is necessary to establish hostile work environment harassment claims.
Hostile work environment sexual harassment occurs when the conduct is based on sex and is unwelcome. It must be pervasive enough to create a working environment that is offensive or abusive. You must be able to prove that you believed that the conduct was offensive, abusive or hostile and that a reasonable person in your position would also believe that the conduct was offensive, abusive or hostile.
Employer liability
Title VII applies to employers with at least 15 employees. The New Jersey Law Against Discrimination applies to all employers regardless of their size. This means that if you work for a small company, your sexual harassment claim may proceed under the state’s law instead of Title VII.
If your superior committed the sexual harassment and there was a negative employment action, your employer will be liable. If your harassment was hostile work environment harassment, your employer will likewise be liable. Your employer may defend itself by arguing that it used reasonable care to stop the harassment once your employer became aware of it and that you unreasonably refused to avail yourself of the corrective measures. If your coworker committed the sexual harassment, your employer will be liable if your employer should have known or did know about it and did nothing to correct it.
You also have the responsibility of attempting to stop the harassment. If you are not able to end it personally, follow the policies that your company has in place for complaining. Document everything that you do and that you experience, including all of the harassing incidents and your complaint.
Confront the harasser
You should start by telling the harasser that his or her conduct is unwelcome and offensive. You can do this in person or in an email or letter. If you send an email, do so from a company email account.
Human resources and supervisors
If confronting the harasser does not end the harassment, you will need to follow your company’s policies for complaints. Keep escalating your complaint up the ladder if you do not get an appropriate response from your company’s management.
Write everything down
You must document everything. If you don’t, you are unlikely to prevail in your claim. Document everything that you do and what your company does. Keep copies of your files away from your workplace. Document all instances of harassment when they occur, including information about the people who were present, the time and the date.
What happens if your employer retaliates?
Retaliating against workers who file sexual harassment complaints is illegal. If your employer retaliates against you for filing a complaint, you may file a separate action. Before you file your initial sexual harassment complaint, it is a smart idea to first request a copy of your personnel file. That can give you proof that your past work has been evaluated positively.
Government intervention
Before you can file a Title VII lawsuit, you must first file a charge of sexual harassment with the EEOC. The agency will investigate your claim. If it does not reach a settlement for you, you can then file a lawsuit. To learn more about your potential claim, contact Swartz Swidler to schedule an appointment.
