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Frequently Asked Questions (FAQ)

Frequently Asked Questions

1. What is workplace sexual harassment?

Workplace sexual harassment is a specific form of illegal gender discrimination.  It covers a broad range of abusive workplace conduct based on sex, such as unwanted sexual advances, requests for sexual favors, and inappropriate gendered or sexual comments.  Harassers and victims can be men or women, and individuals can be harassed by members of their own gender.  Illegal harassers are often supervisors or managers, but co-workers can illegally harass as well.

2. What is a hostile work environment?

Under federal law, a hostile work environment is a work environment in which an employee is subjected to unwelcome sexual advances, conduct or comments based on sex that is so severe or pervasive as to alter the conditions of the employee’s employment and create an abusive working environment.  This conduct includes, among other things, discriminatory intimidation, ridicule, insult, and inappropriate comments and touching.  Courts consider factors such as the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance.  If you have been subjected to any form of unwelcome sexual conduct you should consider consulting with an attorney to determine your rights.  

3. What is quid pro quo sexual harassment?

Quid pro quo harassment is a specific type of illegal workplace discrimination that occurs when a supervisor or other person in authority offers or threatens to condition an employment decision – such as a raise, a promotion, or continued employment – on the exchange of sexual favors or tolerance of some other sexual conduct.  For example, it is illegal for a supervisor to threaten to fire an employee if he or she does not engage in sexual behavior with the supervisor.  Quid pro quo harassment is illegal regardless of whether the employee submits to the request.

4. Is it illegal for my boss to sexually harass me off the work premises or during non-working hours?

Yes.  Illegal harassment often occurs outside the office or workplace, or “off the clock,” such as when co-workers socialize after hours, or when employees are on business travel or at a client site.  

5. Who counts as my “boss” for purposes of sexual harassment law?

In the context of sexual harassment law, a boss is a person who has the authority to hire, fire, or make other tangible employment decisions affecting the victim, such as promotion and pay decisions.  However, even co-workers who are not supervisors and who do not have hiring or firing authority can be guilty of workplace harassment, and an employer may be liable for such co-worker harassment when it either knew or should have known about the harassment but failed to stop it.

6. Can you have both quid pro quo and hostile environment in the same case or do I have to choose?

It is possible to have both, but it depends on the circumstances.  It is not uncommon for a harassing supervisor to both demand sexual favors and also engage in sex-based conduct that creates a hostile work environment. It is important to remember that, regardless of the legal category, sexual harassment in any form is illegal.

7. What if I have also been discriminated against in other ways? Can I make more than one claim?

Yes.  You may bring a legal claim based on any form of discrimination prohibited by law if that is what you experienced.  For example, if the discrimination you suffered at work was motivated not only by your gender but also your race, then you may have both race- and gender-based discrimination claims.

8. How bad does the harassment have to be to be illegal?

Under federal law, an employee must demonstrate that the harassing conduct was either severe or pervasive; but the conduct does not have to be both.  Depending on where you live and work, state or local laws with broader protection may apply to you as well.  (Such laws exist in New York, for example.)  Many employees mistakenly believe that the conduct they have experienced is not severe or pervasive enough to be illegal.  An experienced lawyer can help you determine whether you are protected by law and what legal options you have.  

9. Is one bad act enough to be illegal?

Even a single incident of an unwelcome sexual advance by a supervisor linked to the granting or withholding of job benefits may support a quid pro quo harassment claim. On some occasions, one bad act, if sufficiently severe, can also constitute a hostile work environment claim. 

10. What are my rights if I have observed someone else being sexually harassed?

If you have observed someone being sexually harassed, you should seriously consider reporting the harassment to a manager or Human Resources.  The law prohibits retaliation against an employee who reports that another employee has been sexually harassed.

11. Is my employer liable if my customers or clients sexually harass me?

It depends on the nature of the harassment. Federal law (and many state laws) protect employees experiencing harassment from clients or customers in certain situations, particularly where the employer is or should have been aware of the harassment, but failed to take action to correct it.   The more control your employer has over its customers or clients, the stronger your claim of harassment will be.

12. I am worried that if report the sexual harassment, I will be “blackballed” in my company. What can I do about that?

“Blackballing” is a term sometimes used to describe when a supervisor or other employees retaliate by taking actions that make your work more difficult, damage your reputation, or generally hinder your ability to work because you have raised a complaint of harassment.

Generally speaking, it is illegal for employers to retaliate against employees who have raised complaints of discrimination, including complaints of sexual harassment. While employers sometimes do retaliate against employees who raise concerns of sexual harassment, they may be less likely to retaliate against employees who have retained legal counsel. 

13. What kinds of behaviors constitute illegal retaliation?

Actions taken in response to a complaint of discrimination that materially affect the terms and conditions of your employment may constitute impermissible retaliation.  Examples commonly include pay cuts, demotions and termination, but may also include transfers, poor reviews, harassment, and other actions that negatively affect your employment.

14. What if I didn’t officially complain to HR, but my supervisors found out that I am upset by my boss’s sexual harassment. Can they fire me?

Your being upset is a statement to your supervisors that your boss’s conduct is unwelcome and inappropriate, and therefore may constitute a legally protected complaint under  anti-retaliation laws. Firing you because you are upset about your boss’s advances therefore would likely constitute illegal retaliation.

15. How can I be sure my employer won’t hurt my reputation in the future if I accuse them of sexual harassment?

There is never a guarantee that an employer will refrain from trying to hurt your reputation.  But, such action likely would constitute illegal retaliation and potentially violate other laws as well. An experienced employment attorney can counsel you about your options if this does occur.

16. My company tells me that if I am uncomfortable with the way my boss is treating me, they will transfer me. Why should I be the one who is transferred? I didn’t do anything wrong.

In some situations, a transfer following a complaint about sexual harassment can constitute illegal retaliation. You should contact an experienced attorney to discuss the situation.

17. My spouse works for my boss’s best friend. What if I complaint and the boss’s friend takes it out on my spouse?

That may be illegal retaliation.  Any action that might deter a reasonable employee from making a complaint of discrimination may be form of prohibited retaliation.  You should contact an experienced attorney to discuss the situation.

18. Can I speak to colleagues about the sexual harassment I am experiencing? Can I ask them for their help?

Whether to speak with colleagues will depend on your individual circumstances and there may be upside and downside to doing so.  As with many issues in this area, the answer to this question depends on the particular facts and circumstances involved. 

19. What’s in it for me if I report sexual harassment? What can I actually get out of it?

Legal remedies available to you if you win in court on a sexual harassment claim can include money damages for lost wages, physical harm, emotional distress, loss of reputation, attorneys’ fees and, under certain circumstances, lost future income.  Punitive damages are also recoverable depending on the particular law applied and whether certain, higher standards of proof are met.  Declaratory and injunctive relief to prevent further harassment may be available as well.

Practical remedies can include creating public awareness of the employer’s bad actions, and in rare cases, employer-imposed punishments, such as firing the harasser.

20. Should I call a lawyer even if I don’t want to sue?

You should consult with an attorney if you have a concern that your employer, manager, or coworker has sexually harassed you or otherwise treated you improperly.  An attorney can help you to evaluate your rights and potential next steps, from basic advice to commencing legal action.  An attorney also can help you to evaluate the pros and cons of raising a claim, and recommend ways of doing so that provide the most legal protection.

21. What else might I get in a settlement besides money?

Depending on your circumstances, additional benefits such as payments for medical insurance, a positive or neutral reference, or contractual language defining or limiting how the company may speak about you to others, may be negotiated for as part of a settlement.

22. What are the chances my boss will get fired?

Unfortunately, the chances are very low. Even though many companies claim to have a zero-tolerance policy for sexual harassment, very few actually do. And except in very rare circumstances, courts will not mandate that an employer terminate the accused harasser.  

23. If I am hoping to negotiate a severance agreement, what should I expect the provisions to be?

Besides the provisions that govern the amount of any payment and the manner and timing of such payment, there are a number of provisions to be expected.  Waiver and release of claims, confidentiality and non-disparagement obligations, and language around enforcement in the event of a breach are among the more common provisions.  An experienced employment attorney can review any agreement, and can help explain and negotiate these terms.

24. If I negotiate a severance agreement, is confidentiality a given?

Probably.  However, agreements sometimes can be negotiated with limited or no confidentiality.

25. I signed a confidentiality agreement two years ago. I regret it and now I want to talk. Can I?

As a legal matter, you are generally bound by the contract you signed.  The contract may include a provision requiring the return of money received or other monetary penalties in the event confidentiality is breached.  Enforcement of confidentiality in sexual harassment settlements is an evolving issue and you should seek legal advice in the event of a breach. 

26. Can I go to the press or on social media with my accusations if I haven’t signed anything?

Generally, yes, but you should consider a number of factors before doing so.  Keep in mind that, if you publicly accuse someone of sexual harassment, the person may react in a number of different ways, including by lashing out or retaliating against you.  Another risk is that you may be accused of defamation, and sued.  While a defamation claim will succeed only if the bad actor is able to prove that your allegations of harassment are false, even if you win, defending yourself against a legal claim can be time consuming, arduous and expensive.  There may be other potential consequences as well, so you should consider consulting a lawyer before making any public statement about your case.

27. I am feeling so freaked out by what is going on, I just want to quit. Any reason not to?

Don’t quit.  For one, it gives the employer an easy solution that does not address the real problem – the harassment.  More importantly, the legal bar for proving that conditions were so intolerable that you were forced to quit is very high, and quitting allows the employer to argue that you did not give it an opportunity to fix the problem.  The law may also consider you to have abandoned your job, even though the harassment is the reason you are leaving.  If the current environment makes you feel unsafe, ask Human Resources to take immediate steps to address the issue. Consult an attorney immediately so that you can brainstorm steps that will protect you.

28. I am feeling so freaked out by what is going on, how can I protect my mental health but not do anything damaging to my claim?

Your physical and mental health should be paramount.  Accordingly, you should feel free to use sick time, see doctors, etc., as you would for any other medical condition.  In the event you bring a legal claim, your employer may have access to your medical records; however, in most jurisdictions, you may be able to limit the employer’s ability to access those records if you agree to limit the scope of the damages you are seeking.

29. Why should I speak to lawyer? Why can’t I do this myself?

Many employees choose to speak with a lawyer to learn about their legal rights and discuss their options for dealing with ongoing or past sexual harassment. Not all claims lead to litigation, nor should they.  An experienced lawyer can help you understand how best to approach the situation consistent with your goals.

30. Should I go to Human Resources with my concerns? They say they are on my side, but are they?

For most claims, you eventually will need to involve Human Resources.  In some circumstances, the law requires that you give the employer a chance to fix the problem, so reporting is necessary – the employer cannot fix the problem if it doesn’t know about it. While Human Resources may (or may not) address the harassment, do be wary: Human Resources is part of the company and is responsible in part for managing the risk of the company.  Accordingly, to protect yourself, keep a good record of who you speak to and what they say.  Human Resources will usually not share their records with you so you will have to keep your own.

31. Is my employer obligated to investigate my claim of sexual harassment? Are they obligated to do it in a fair and neutral way?

The company is not obligated under the law to investigate, or to be fair or accurate.  However, if the company does not have a prompt and credible system for investigation, it may not be able to successfully argue that it took appropriate measures to investigate and address the alleged harassment. 

32. Do I have the right to see the results of the investigation of my sexual harassment claim?

You do not have the right to see the employer’s investigation results, although failure to provide any response to your claim would suggest the employer did not conduct a good faith investigation.  In most instances, employers do not disclose substantive investigation results until after an employee retains legal counsel. 

33. If HR says to put my claim in writing, should I do so?

Yes, but make sure it is factual (chronological is always helpful) and comprehensive, don’t exaggerate, and do keep a copy for your own records. 

34. If I have made my report orally, how can I prove I made the complaint?

You can and should keep your own records.  You can send an email to yourself describing what you did, when you did it, to whom you spoke, etc. You can also follow up with the person you complained to via email, referencing the complaint you made.  

35. Can I record my meetings with HR? Can I record meetings generally?

Whether you can legally record a conversation with another person depends upon the state in which you live.  Some states require consent from both parties (i.e. you and the other person); in other states, your consent is enough.  However, your employer may have internal policies which prohibit recording, and may terminate your employment if it learns you have been recording conversations.  Moreover, you must hold onto any recording you make, as it may become part of your case, even if the recording is unhelpful to your claims.  It is best to consult with an attorney before recording your employer.

36. How can I make sure that my report of sexual harassment remains confidential?

Unfortunately, you cannot.  While the company should take steps to maintain confidentiality, you should assume your complaint will not be confidential, at least within the company. 

37. Do I have to make a complaint internally? Can’t I just go to the EEOC or a lawyer?

You are not required to make a complaint internally, but it is a good idea that you do so.  In many cases, the law will not hold an employer responsible for sexual harassment if it was not aware of the harassment and given an opportunity to address it. That said, an internal complaint is one of many ways to bring the issue to the attention of the company.  In some situations, it may be better to bring in an attorney early in the process.  Under no circumstances should you ever feel required to confront your harasser.

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