Sexual Harassment at Work? What to Do
Oct 27, 2017
October 27, 2017 – Sexual harassment allegations against Harvey Weinstein, Roger Ailes, and Bill O’Reilly have helped bring workplace sexual harassment to the forefront of national discourse. However, sexual harassment remains one of the most toxic and pervasive issues facing employees and employers today. The EEOC continues to see a high number of charges alleging sex-based harassment and has made fighting harassment an agency priority.
As these cases demonstrate, employees who have experienced workplace sexual harassment are often scared or intimidated to report the treatment for fear of retaliation, disbelief, or blame. Those who experience sexual harassment often deny or downplay the serious of the harassment, attempt to ignore or forget it, or endure the behavior. Although reporting a sexual harasser is difficult, employees are entitled to work in an employment setting free of unlawful discrimination, retaliation and harassment, and calling out the conduct is an important first step toward addressing it.
What constitutes workplace sexual harassment?
Both state and federal laws protect employees from sexual harassment. Workplace sexual harassment includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other verbal or physical conduct or communication of a sexual nature.
Two common types of sexual harassment include quid pro quo and hostile work environment. Quid pro quo sexual harassment occurs when an employee’s submission to, or rejection of, a sexual demand is used as the basis for an employment decision. For example, a supervisor or other person of authority requests or suggests that the employee will receive an employment benefit, such as a raise, promotion, or keeping a job, in exchange for sexual favors. Likewise, a rejection of the sexual harassment would result in an adverse action, like a demotion, decreased pay or benefits or an undesirable job reassignment.
A hostile work environment is where the unwelcome sexual harassment is so pervasive or persistent that it adversely affects a person or group’s ability to perform their job. Sexual harassment may include sexual contact, sexual advances, and/or sexual jokes or sexually charged communications or activities if the actions are severe, repeated or pervasive. To prove a hostile environment claim, the plaintiff must show that (1) she or he belongs to a protected group, (2) was subject to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a "term, condition, or privilege" of employment, and, in cases of peer or co-worker harassment, (5) the employer knew or should have known of the harassment in question and failed to take proper remedial action.
How bad must the sexual harassment be to be actionable?
There is no bright line test to determining whether the harassment is unlawful. Courts consider the “totality of circumstances” of the entire hostile work environment in evaluating these claims. Courts examine whether a reasonable person would find the harassment objectionable and whether the employee found the harassment objectionable.
To prove the harassment affected a “term, condition or privilege” of employment, the sexual harassment must be “sufficiently severe or pervasive” to alter the conditions of employment and create an abusive working environment. Behavior that is inappropriate, rude and/or offensive will likely not rise to the level of unlawful. Courts consider several factors to assess severity and/or pervasiveness, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere “offensive utterance”; and whether it unreasonably interferes with an employee's work performance. In some cases, a single incident of extremely severe conduct may be enough to support a hostile environment claim, particularly if it involves a work-related sexual assault or the threat of sexual violence. However, most cases involve many incidents of harassment over a period of time and require an analysis of all surround circumstances to determine whether the harassment is legally actionable. You should consult an experienced employment lawyer to discuss whether the harassment you experienced may rise to the level of unlawful sexual harassment.
What should I do if I’ve been sexually harassed at work?
An employee experiencing sexual harassment should report the conduct to a supervisor or human resources department immediately. An employee handbook or other internal employment policy or procedure may provide additional guidance on making the report. Reporting the conduct not only obligates the employer to act, but it sets the stage for further actions if the harassment does not stop.
Retaliation for reporting sexual harassment is also unlawful. Retaliation can take many forms, including, but not limited to: demotion, reduced pay or benefits, job reassignment, and termination. An employee who has experienced any form of retaliation should also contact an experienced employment lawyer to understand their rights.
Click here for more information about workplace sexual harassment and here for more information about employment retaliation.
Contact Our Minnesota Sexual Harassment Lawyers to Discuss Your Rights
Baillon Thome Jozwiak & Wanta LLP is committed to protecting the rights of Minnesota employees who have suffered unlawful workplace sexual harassment, discrimination and retaliation. For information about sexual harassment in the workplace or to speak to an attorney about your potential case, please contact us at 612-252-3570 or click here for a free initial consultation.