Victims of sexual harassment will not always want to come forward in fear of retaliation in the workplace. Others may fear the judgment of their co-workers and family or fear that they will be met with disbelief. While we understand the hesitation, it is important for victims to remember that sexual harassment is harmful, unjust, and illegal. The pursuit of any claims will hold employers accountable to prevent future discrimination and harassment.
Is sexual harassment common?
Sexual harassment continues to be a pervasive problem for both employees and employers. In 2018, the EEOC reported a 12% spike in sexual harassment charges filed with the agency, as well as a staggering 50% increase in the number of lawsuits it brought on behalf of employees. In Minnesota, more than a quarter of all charges filed with the agency asserted claims of sex-based harassment or discrimination. Despite these sobering statistics, Minnesota employees have rights under both state and federal laws that protect them from unlawful workplace sexual harassment.
What is sexual harassment?
Sexual harassment of an employee includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature. Harassment does not have to be based on a sexual desire or be sexual in nature to constitute sexual harassment. The harassment can include offensive remarks about a person’s sex in general.
What are examples of sexual harassment?
Sexual harassment in the workplace can come in many forms. Common examples include:
- Sexual comments about a person’s clothing, behavior or body
- Communication of a sexual nature, including sexual or sex-based jokes
- Requests for sexual favors
- Repeatedly asking a person out
- Unwanted touching (kissing, hugging, patting, pinching, shoulder rubs, stroking)
- Unwanted stares, derogatory or sexual gestures or facial expressions
- Posters, photographs, drawings, screensavers or emails of a sexual nature
Types of sexual harassment cases
There are two common ways an employee experiences sexual harassment. The first is when an employee is subjected to a hostile work environment. The second is referred to as quid pro quo.
What is hostile work environment?
Do you feel unsafe coming to work? Are you fearful of sexual remarks, propositions, commentary, or other unwanted attention?
When the hostility is so severe or pervasive that it adversely affects a person or group’s ability to perform their job, this constitutes a hostile work environment. In determining what degree of hostility rises to the level of an actionable hostile environment claim, the law asks whether a reasonable person, in the same or similar circumstances would find the conduct offensive.
What is quid pro quo in a sexual harassment case?
Has an employer offered you a promotion in exchange for sexual favors? Have you been threatened with a demotion or termination for failure to comply with a manager’s sexual advances?
Quid pro quo exists when an employee whose submission to, or rejection of, sexual harassment is a factor in making a decision that affects the employee (i.e. termination, performance warnings, not receiving a promotion, getting a raise, being placed on a performance improvement plan).
Who is legally protected in Minnesota?
All employees are protected against sexual harassment. This includes both male and female employees. Even if you weren’t hired for a position but you were harassed as an applicant, you are entitled to legal protections. Harassment may involve a co-worker, supervisor or a member of management. It doesn’t matter if the offender is of the opposite gender. If you were harassed by a client or customer and your employer failed to take proper action, you may also be entitled to compensation and other remedies.
Can a co-worker commit sexual harassment?
While hostile or harassing conduct by supervisors and managers are viewed as more serious and more likely to adversely affect employment, a victim could also suffer sexual harassment by other colleagues and co-workers. If you have been the target of harassment in the workplace, it is important to consult an attorney. If you have reported misconduct and there has been no support or relief by management or human resources, you may be entitled to compensation.
Supervisor v. co-worker sexual harassment
Our attorneys are at the cutting edge of sexual harassment law and employee rights advocacy in Minnesota. As a result of our work, it is now easier for employees to bring actions against their employers in the event of supervisor harassment.
After many years of conflicting court opinions, in 2008, the Minnesota Supreme Court adopted the federal liability standard for cases involving sexual harassment by a supervisor. Frances Baillon and Joni Thome of Baillon Thome Jozwiak & Wanta LLP represented the employee in Frieler v. Carlson Marketing Group, 751 N.W.2d 558 (Minn. 2008), in which the Court held that, under the Minnesota Human Rights Act, an employer may be vicariously liable for the sex-based harassment and hostile work environment created by the supervisor. Prior to Frieler, it was more difficult for an employee to show the employer was liable for the supervisor harassment.
The Court in Frieler also adopted a more expansive definition regarding who constitutes a “supervisor” to include individuals who have authority to undertake or recommend tangible employment decisions affecting the employee or individuals who have authority to direct the employees daily work activities.
While Frieler provided needed clarity regarding the Minnesota standard, there remain other issues to determine in each case of supervisor sexual harassment. For instance, an issue requiring legal analysis is whether there has been “tangible employment action.” What does that mean? A tangible employment action is “a significant change in employment status.” Examples include: hiring and firing, promotion and failure to promote, demotion, undesirable reassignment, a significant change in benefits, decreased compensation, and a change in work assignment.
Does my case constitute sexual harassment?
Every case is unique and requires the review of an experienced attorney. In sex-based harassment cases, an employee must show that the harassment is “severe or pervasive” enough for liability to attach. While a single occurrence may be enough to establish this element in the event of a sexual assault or similar heightened experience of harassment, courts consider the “totality of circumstances” when analyzing whether the conduct is severe or pervasive enough to constitute sexual harassment.
Contact Our Sexual Harassment Lawyers
If you are experiencing sexually harassing behavior in your workplace, have already reported harassment and are now experiencing retaliation as a result, or are unsure whether the treatment you are enduring constitutes harassment, contact one of our sexual harassment lawyers to discuss your rights. The attorneys at Baillon Thome Jozwiak & Wanta LLP have represented countless employees who have endured harassment in the workplace and have significant experience litigating and resolving sexual harassment cases. Contact us for a free initial consultation.