The Prevalence of Sexual Harassment in the Workplace
Everyone deserves to be treated with dignity and respect at work. Unfortunately, sexual harassment remains far too common in the workplace. Despite the fact that sexual harassment often goes unreported, the Equal Employment Opportunities Commission (EEOC) received approximately 205,996 complaints alleging sexual harassment between 1997 and 2018.
The Harmful Consequences of Sexual Harassment at Work
Sexual harassment in the workplace is harmful to both the individual and society as a whole for a variety of reasons. In particularly egregious cases, an employee might be fired, lose a promotion, or be paid less for refusing a supervisor’s unwanted sexual advances. An employee who is the target of sexual harassment from coworkers may suffer from anxiety, distraction, and even physical health issues as a result. An abusive work environment, even one that does not seriously affect an employee’s psychological well-being, can and often will derail their career by detracting from their job performance, discouraging them from showing up to work, and driving them to seek employment elsewhere. Employers that turn a blind eye to sexual harassment in the workplace are often less productive, have higher employee absenteeism, and experience high employee turnover.
The Law Prohibits Sexual Harassment in the Workplace
Sexual harassment in the workplace is a form of unlawful gender discrimination. Both Title VII of the Civil Rights Act of 1964 and the Texas Commission on Human Rights Act (TCHRA) prohibit sexual harassment in the workplace. The substantive law governing sexual harassment claims under Title VII and the TCHRA is identical. These laws prohibit two types of sexual harassment: “quid pro quo” and “hostile work environment.”
Quid Pro Quo Sexual Harassment
“Quid pro quo” literally means “this for that.” Quid pro quo sexual harassment occurs when a supervisor requests a sexual favor from a subordinate employee in return for a job benefit or to avoid negative consequences. The following are a few examples of quid pro quo sexual harassment:
- “Sleep with me or you’re fired.”
- “I can make your life very hard or very easy.”
- “If you go on a date with me, I’ll give you more hours.”
Hostile Work Environment Sexual Harassment
“Hostile work environment” sexual harassment refers to unwelcome sexual comments or conduct that is so severe or pervasive that it disrupts or interferes with your work. Examples of hostile work environment sexual harassment include:
- unwanted touching,
- suggestive text messages or emails, and
- sharing sexually explicit images or videos.
To ensure that the harasser knows that their sexual comments or conduct is “unwelcome,” the victim should make it clear to the harasser that she finds their comments or conduct offensive and wishes for it to stop.
To determine whether the sexual harassment is severe or pervasive enough to create a hostile work environment, courts consider a variety of factors. These factors may include the frequency of the harassment, its severity, the degree to which the harassment is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance. Mere sexually crude jokes, suggestive or flirtatious comments, and chauvinistic remarks are often not severe enough to create a hostile work environment. On the other end of the spectrum, a workplace that is permeated with sexual intimidation, ridicule, and insult would certainly qualify as a hostile work environment.
Importantly, to establish a hostile work environment claim based on sexual harassment by a coworker (rather than a supervisor or higher-ranking employee), an employee must prove that (1) their employer knew or should have known about their coworker’s harassment, (2) but failed to take prompt, adequate steps to remedy the problem.
An employer can escape liability if it did not have notice of the coworker’s sexual harassment. If you have been subjected to sexual harassment by a coworker, there are several steps you should take to ensure that your employer has notice of the problem:
- Check to see if your employer has an anti-harassment policy that explains how to report sexual harassment in the workplace. An employer’s anti-harassment policy may describe one or more ways that you can report the harassment. For example, some companies have a special “complaint hotline” that employees can call to anonymously report workplace misconduct to the human resources department. Other companies may have you fill out and submit a form describing the problem, either online or in person. Employers often publish their anti-harassment policy and complaint procedures on their website or in their employee handbook.
- If your employer has an anti-harassment policy or employee-complaint procedure, you should carefully follow the steps in the policy or procedure. If you are unsure whether your employer has an anti-harassment policy or employee-complaint procedure, you should ask a supervisor or someone in the human resources department whether one exists and, if so, to provide you with a copy of it. If your employer does in fact have a specific policy or procedure for reporting harassment or submitting employee complaints, you should carefully follow the steps in the policy or procedure without delay.
- If your employer does not have a specific anti-harassment policy or complaint procedure, you should promptly report the sexual harassment to a supervisor or employee with higher authority within the organization. You can talk with your own supervisor, the supervisor of the employee who is harassing you, or another supervisor or higher-level employee within your organization. Although you may feel embarrassed or uncomfortable describing the sexual harassment that has occurred, it’s important that you describe the harassment as accurately and thoroughly as possible so that the employer is fully aware of the severity or pervasiveness of the problem. Ask the person who you report the harassment to for their help in putting a stop to the comments and conduct. You should also consider asking the person who you report the harassment to whether you should report the issue to someone else within the organization as well to prevent the employer from later claiming ignorance of the problem based on your failure to report it to the “right” person within the organization.
Once you have reported the sexual harassment to your employer, the law requires that your employer take prompt and adequate steps to end the behavior and eliminate the hostile work environment. In determining whether an employer took “prompt remedial measures,” courts consider various factors including:
- whether the employer took the allegations of harassment seriously;
- how promptly the employer responded to the allegations;
- how thoroughly the employer investigated the allegations;
- whether and to what extent the employer implemented remedial and disciplinary measures as a result of its investigation; and
- whether and to what extent the employer had policies, procedures, and practices in place to prevent and deal with sexual harassment in the workplace.
When to Speak to an Employment Lawyer About Sexual Harassment
If you believe that you may have a sexual harassment claim, there are a number of things you can do to protect your rights and improve your chances of a successful outcome:
- Document everything. Keep detailed notes about the events that transpire at work. Each time you are subjected to some form of sexual harassment, write down the date, time, location, a detailed description of what happened, the harasser’s name, the names of any witnesses who were present when it happened, and exactly what was said or done.
- Keep copies or take screenshots of any relevant emails, texts, photos, videos, or social-media posts.
- Tell a trusted friend, family member, or co-worker what happened and write down the details of those conversations. They can not only provide you with much needed support, they may also provide corroborating statements if you need them later on.
- Keep notes and documents related to your job productivity and performance. If possible, review and/or obtain copies of your performance reviews and personnel file. Having your own copies of these documents is important because you and your attorney may need to use them as evidence should your employer ever dispute your performance. Moreover, having your own copies of these records will prevent attempts by your employer later on to cover its tracks by, for example, adding records to your personnel file after-the-fact, altering your employment records, or “losing” key documents that might support your claim.
- Store all documents, notes, and evidence outside your office. Make sure to keep any electronic notes, documents, photos, or videos on a personal computer or phone, not a work computer/phone.
In addition to taking the actions described above, hiring a knowledgeable and experienced employment lawyer may help you achieve the best outcome possible in your case. An employment lawyer may advise you on your rights, help you prepare your EEOC complaint in a manner that preserves your rights, ensure that your filing deadlines are met, investigate and collect the evidence that you will later need to prove your claims, and represent you in a lawsuit.
Because of the complicated administrative process, short filing deadlines, and complex web of employment laws that might apply to your case, victims of sexual harassment in the workplace should contact the Wagoner Law Firm without delay for a free case evaluation.