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What is Sexual Harassment? |
Sexual Harassment is a form of discrimination based on one's gender and
includes unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature when submission to or rejection
of this conduct explicitly or implicitly affects an individual's employment,
unreasonably interferes with an individual's work performance or creates
an intimidating, hostile or offensive work environment.
Types of Sexual Harassment
Identifying Sexual Harassment
Behavior Considered to be Sexual Harassment
Indirect Harassment
Why Consult an Attorney
Steps to Take if Harassed
What to do if Nothing Changes
Retaliatory Acts
Time Limits on Complaints
Filing a Complaint
Two main types of Sexual Harassment:
- Quid Pro Quo: When decisions regarding employment are promised,
threatened or made based on whether or not one or more employees will
submit to sexually-oriented conduct. Quid Pro Quo harassment is a very
broad category encompassing more than blatant threats such as "if
you want this job/promotion/reassignment/vacation time, you'll have
to sleep with me."
- Hostile Work Environment: Where sexually-oriented conduct creates
an offensive and unpleasant working environment.
Identifying Sexual Harassment
Sexual harassment can occur in a variety of circumstances, including,
but not limited to, the following:
- The harasser can be the victim's supervisor, an agent of the employer,
a supervisor in another area, a co-worker, or a non-employee, although
ordinarily, a harasser will be someone in the company in a higher supervisory
capacity than the victim.
- The victim does not have to be the person harassed but could be anyone
affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to the
victim or loss of employment.
- The harasser's conduct must be unwelcome.
- Sexual harassment does not have to occur between members of the opposite
sex.
- Either gender can be a victim of sexual harassment or the harasser.
Types of Behavior Considered to be Sexual Harassment:
Courts and government agencies have found the following types of conduct
to be illegal sexual harassment:
- Repeated sexual innuendo, obscene or "off-color" jokes,
slurs, lewd remarks and language, other offensive sexual comments.
- Content in letters, notes, facsimiles (faxes), e-mail, graffiti that
is of a sexual nature or sexually abusive.
- Sexual propositions, insults, threats.
- Sexually-oriented demeaning names.
- Persistent unwanted and unwelcome sexual or romantic overtures or
attention.
- Leering, whistling, other sexually suggestive sounds or gestures.
- Displaying pornographic pictures, calendars, cartoons, other sexual
material in the workplace.
- Coerced or unwelcome touching, patting, brushing up against, pinching,
kissing, stroking, massaging, squeezing, fondling, tickling.
- Subtle or overt pressure for sexual favors.
- Coerced sexual intercourse (e.g. as a condition of employment or academic
status).
Indirect Harassment: Sexual Comments to Others Can Still
be Considered Harassment
Even if comments are not made directly to you, they can still be considered
sexual harassment. Recently, a court in New York held that the plaintiff
experienced a hostile work environment as she was exposed to sexual harassment
due to the fact that it was happening to others around her and she complained
about it to her supervisor—even though she herself was not "sexually
harassed."
Why You Should Consult an Attorney with a Sexual Harassment
Claim
It is always a good idea to consult an expert for advice before
submitting a sexual harassment claim. An experienced attorney:
- May be able to get an employer's attention so the offending practice
is stopped.
- Can give you specific guidance as to what you should be doing to document
your claim (create a paper
trail) and protect yourself against retaliation.
- May help you file a complaint with the EEOC
or an appropriate state
or city agency.
- Can help you protect your rights should there be a court case.
Additional Steps to Take if You're Being Sexually Harassed
- Directly inform the harasser that their conduct is unwelcome and must
stop.
- Examine your company's sexual harassment policy.
- If no policy exists, consider going to your supervisor or to the supervisor
of the person harassing you.
- File a complaint according to your company's policy.
- Follow up on your complaint so you understand how/if your employer
is addressing the issue and you don't risk losing your claim.
- File a complaint with the appropriate government agency (see our downloadable
form to file a complaint with the EEOC).
What to Do if You Follow All the Rules but Nothing Changes
If no satisfaction is reached through your company's internal complaint
procedures you should contact an attorney (if you have not already done
so). Alternatively, you should contact the EEOC
or other relevant state or city administrative agency in order to preserve
your rights and move forward with your complaint. In New York, the New
York State Division of Human Rights (NYSDHR)
and the New York City Commission on Human Rights (NYCCHR)
are the relevant state and city agencies.
Retaliatory Acts: What to do if You Follow the Rules
and are Punished or Fired
It is illegal for an employer to retaliate against an employee who has
made a complaint of sexual harassment, discrimination or hostile work
environment. It is interesting to note that courts have held that a retaliation
claim may exist even if it is proven that the original claim was not valid
if a) the employee who made the complaint believed it to be valid and
b) the employee suffered an adverse employment action due to the invalid
complaint. If you suspect you have been made to suffer as a result
of filing a complaint, consult an attorney.
Time Limits to Make an Administrative Complaint
In many places, there are time limits within which you must file a complaint.
In New York, the filing period is 300 days. Any acts that occurred
more than 300 days prior to the date you file your complaint with the
EEOC, the New York State Department of Human Resources or the New York
City Commission on Human Resources will not be considered by the agency
in their review of your complaint.
And if these acts are outside the time limit (considered "prior
acts"), this may affect whether or not they may be considered by
a Federal Court should you file a Federal lawsuit subsequent to your EEOC
filing. It is possible that these acts would not be considered by that
court, unless the prior acts are deemed to be "continuous discrimination."
However, it is possible that as long as a State Court lawsuit is filed
within three years, you will be able to go forward in that venue.
Filing a Complaint
If you've been the victim of sexual harassment and have been unsuccessful
in your attempts to resolve your dispute, you may want to consider filing
a complaint with the appropriate government agency. In New York, the agencies
to contact include:
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