Know Your Rights: Sexual Harassment
What is Sexual Harassment?
There are many definitions of this term, but there is a common sense way to think about sexual harassment that serves as a pretty good rule of thumb: Truly offensive conduct in the workplace where the offensiveness is at least partially due to its sexual nature is likely to be illegal, especially if it occurs frequently or is egregious. This is so when the “bad actor” (a term lawyers use ) is your boss or your co-worker. You might have a claim even if the bad actor is a customer, client, board member or other person who is not technically an employee of your employer. It will depend on the degree of control your employer has over the bad actor.
Quid Pro Quo Sexual Harassment
There are two main categories of sexual harassment. The “classic,” and the first category of conduct to be declared illegal about 30 years ago, is “quid pro quo” sexual harassment. Quid pro quo is a Latin term that literally means, “This for that.” Thus, illegal quid pro quo sexual harassment refers to the situation in which the boss says, in effect, “Have sex with me or you’ll lose your job,” and, because he is the boss, he can make that happen.
In the early days of sexual harassment law, the female plaintiff generally had to prove that the situation was this clear cut in order to win her case. In recent years, however, courts and our culture now recognize that quid pro quo conduct may be (and usually is) much subtler. Here are some real life examples of conduct that may constitute quid pro quo sexual harassment:
- the supervisor who asks you out while your promotion is pending;
- the supervisor who invites you on unnecessary business trips;
- the supervisor engages in personal, suggestive banter that you’d like to avoid but you are dependent upon him for assignments; or
- the supervisor makes it clear you are expected to wear skirts and high heels to work or else.
There might be implicit coercion in all of these situations, or the implicit message that if you don’t do this, you will not get a job benefit or you will lose a job benefit you now have. When there is such coercion and a “tangible job benefit” is at stake, you might well have a quid pro quo sexual harassment claim.
What is a “tangible job benefit”? Not every thing that you could be denied or is at stake will be called “tangible” for these purposes. There is no doubt that hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment will qualify. But, there remain open questions as to whether moving your desk, or adding “assistant” to your title without a change in compensation, or not inviting you to certain meetings or taking you off of an email chain would be “tangible” enough. In those situations, it will depend on the totality of circumstances. These issues are discussed further below when we explore what constitutes illegal retaliation.
Sexually Hostile Work Environment
The other major category of illegal sexual harassment is called “sexually hostile work environment” or “hostile environment” and refers to working in an atmosphere that is suffused with sexual innuendo, offensive jokes, sexual imagery, or what we might call a “frat house” or “boy’s club” atmosphere. One obvious example of a hostile environment is the “boom-boom room” phenomenon - a workplace that is full of coarse language and casual disparagement of women and their body parts. In this situation, your job or your promotion or your compensation may not explicitly be on the line. Here, what’s at stake is that you, as an employee and as a condition of your employment, have to endure a workplace atmosphere that is intimidating, hostile, or abusive. That is what makes it an illegal sexually hostile work environment.
As with quid pro quo sexual harassment, the law has evolved to recognize that the situation does not have to be as horrifying as the “boom-boom room” in order to be illegal. Judges now are more or less aware that subtler behavior is enough to constitute a sexually hostile work environment,and many employers are actually sensitive to the issue and really will not tolerate it. The so-called “zero-tolerance” that has taken hold with some employers is a welcome development, whether it is motivated by a desire to avoid liability or a real generational change.
Some of the factors to consider in asking yourself whether your work environment is a sexually hostile one:
- Is the conduct motivated by gender bias (this is essential);
- Did it happen once or more than once? Frequency matters, especially if the conduct is verbal only. For an unwelcome touching, once may be enough.
- Would a “reasonable person” find the conduct hostile and objectively offensive, or would a reasonable person regard it as a “petty slight”? It is important to keep in mind here that many courts have said that the antidiscrimination laws are not meant to be a general “civility code,” meaning petty slights are just not illegal, nor are “stray remarks.” Where the line is drawn is, again, a matter of evaluating the totality of circumstances.
- Was the conduct “unwelcome”? If you joined in, it’s hard to argue the conduct was unwelcome.
- Are the bad actors supervisors or co-workers?If a coworker, you ordinarily have the duty to report it to the employer and give the employer the opportunity to correct it.(Whether this is required varies according to the jurisdiction involved.)
Damage Caused by Sexual Harassment
Sexual harassment is illegal because it causes real harm. That harm translates into the damage you can claim in connection with the illegal conduct you have suffered.
There are two principle categories of money damages that are available if you can prove you suffered harm due to illegal sexual harassment. One is “monetary damages,” which is consists of the compensation you lost on account of the illegal conduct. Compensation includes lost pay and benefits, both “back pay,” which is what you have lost up to the point of a trial/hearing and, in many cases, “front pay,” meaning the pay you will lose going into the future. How far into the future such “front pay” compensation may be calculated is very complicated and subject to many legal rules and principles.
The other major category of damages available in sexual harassment cases is emotional injury. In some cases, the emotional injury component may be worth more than the compensation component. That will depend on the severity of the emotional damage and the quality of the evidence that is presented to prove that damage. The evidence will almost always be the testimony of the plaintiff, and may include her spouse or other family members, her health care professionals and perhaps even expert witnesses.
What to Do if You are Experiencing Sexual Harassment
Many sexual harassment victims feel powerless and live in fear of taking action to address the situation. However, there are some key steps that you can take if you believe you are experiencing sexual harassment:
- First and foremost, take care of yourself.This might mean seeking psychological support.In the face of severe sexual harassment, most women find a way to blame themselves.You might need a professional to help you through this very painful and confusing time.
- Don’t quit your job without first seeking the advice of a lawyer.Quitting can really undercut any legal claim you might have.If you absolutely can’t stand it, you might be able to take some kind of a leave while you figure things out.It is important to get legal advice and explore your options before you make a decision that can adversely impact your case.
- There are legal protections and many resources available to you. An attorney can advise you on your legal protections and help you find the resources you need.