Unfortunately, sexual harassment in the workplace is a pervasive problem. Sexual harassment can occur between co-workers, supervisors, and subordinates, or even with non-employees such as clients or customers. It can occur between individuals of the same or different genders and is not limited to a single type of behavior. According to the Equal Employment Opportunity Commission (EEOC), sexual harassment is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”
According to Title VII of the Civil Rights Act of 1964 there are two types of sexual harassment claims: (1) Hostile Work Environment, and (2) Quid Pro Quo Harassment.
Hostile Work Environment & Harassment
A hostile work environment claim involves widespread and/or severe sexual harassment that creates an intimidating, offensive, or hostile atmosphere that interferes with the employee’s ability to perform their job. Courts hold that for sexual harassment to be illegal, it must rise beyond simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is frequent, severe, and/or results in termination, demotion, or other adverse employment action.
An adverse employment action is a significant change in your employment status, such as termination, demotion, decrease in pay, reassignment with significantly different responsibilities, or any other action that inflicts economic harm.
When deciding whether the harassment rises to the level of creating a hostile work environment, courts look at the totality of the circumstances, including the frequency of the harassing conduct; its severity; whether it is physically threatening or humiliating, or and whether it unreasonably interferes with an employee’s work performance or whether it is a mere offensive utterance. A hostile work environment is one “pervaded with discriminatory conduct aimed to humiliate, ridicule, or intimidate, thereby creating an abusive atmosphere.”
Generally, an isolated incident does not constitute a hostile work environment unless the incident is severe and/or physically threatening. Hostile environment claims typically involve repeated conduct that often occurs over a series of days, weeks, months, or even years.
A quid pro quo harassment claim exists when a supervisor uses their position of authority to explicitly or implicitly pressure an employee into complying with their sexual demands or penalizes the employee for rejecting their sexual advances. Quid pro quo harassment doesn’t have to be a blatant offer or demand for sex. It can involve veiled threats, suggestive comments, or create situations where you feel obligated to comply with sexual advances to keep your job or obtain career advancement.
Examples of quid pro quo sexual harassment
- Your supervisor asks you for an explicit photo, and when you don’t send it, your workload is increased, or you are passed over for advancement opportunities.
- Your supervisor threatens to terminate you implicitly or explicitly if you end the consensual relationship.
- You reject your supervisor’s requests to go for drinks and/or out to dinner and are suddenly excluded from work assignments or receive a negative performance review.
- Your supervisor implies that your career will suffer if you don’t spend time with them outside of work.
Sexual harassment encompasses a wide range of unwelcome behaviors. It can be physical, verbal, or nonverbal, and in most cases, it is a combination of these.
Physical sexual harassment involves unwelcome physical contact or touching of a sexual nature. Examples include:
- Groping, patting, or brushing against someone’s body without their consent
- Unwanted hugging, kissing, or touching of intimate body parts
- Physically blocking someone’s movement or invading their personal space
Verbal Harassment includes sexually explicit comments or questions degrading remarks, inappropriate jokes, innuendos, or propositions. Examples of verbal harassment include:
- Making sexually suggestive remarks about someone’s appearance
- Making sexual comments about someone’s body
- Asking intrusive questions about someone’s sex life
- Sharing details about their sexual life
- Repeatedly asking someone out on dates despite their refusal
- Using sexually degrading language or slurs
Non-verbal sexual harassment involves sexually suggestive gestures, actions, or materials that create an intimidating or offensive work environment. Examples of non-verbal harassment include:
- Leering or staring at someone in a sexually suggestive manner
- Making sexually suggestive facial expressions or body movements
- Displaying or sharing sexually explicit images, videos, or materials in the workplace
- Sending sexually suggestive emails, texts, or messages.
It can still be harassment/hostile work environment if it is not of a sexual nature.
The harassing conduct need not be motivated by sexual desire to constitute a hostile work environment. It constitutes sexual harassment if the harasser is motivated by a general hostility to the presence of women in the workplace and makes frequent derogatory statements about women and/or treats you differently than your male co-workers, and/or interferes with your ability to do your job.
If you are being harassed, document the incidents thoroughly, including the dates, times, and details, and save any relevant evidence, such as emails or messages. It is legal to record your conversations with the harasser, Human Resources, or a supervisor when reporting the harassment. South Carolina is a one-party consent state. This means that if you are a party to a conversation, you can record it without the consent of the other party or parties.
Quid Pro Quo Harassment
Sexual Harassment by a Supervisor
Courts hold employers to a higher standard if the harasser is a supervisor, as opposed to a coworker. The employer is strictly liable for a supervisor’s harassing behavior if it results in termination, demotion, or other adverse employment actions that inflict economic harm, such as a transfer or reduction in hours.
Even if a supervisor’s harassment does not result in an adverse employment action, the employer may still be liable, especially if the harasser holds a high-ranking position in the company. However, an employer can avoid liability for a supervisor’s sexual harassment if they exercised reasonable care to prevent and correct the supervisor’s harassing behavior, and the employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.
If your employer has a written policy for reporting sexual harassment, you should comply with their policy by following the proper reporting procedures. This ensures that your employer cannot later claim that you failed to take advantage of the preventive or corrective opportunities they provided to escape liability.
IT IS VERY IMPORTANT TO REPORT THE HARASSMENT. UNDERSTANDABLY, IT IS SCARY AND MANY EMPLOYEES DON’T REPORT IT BECAUSE THEY FEAR RETALIATION. HOWEVER, IF YOU DON’T REPORT IT, YOU MAY NOT BE ABLE TO BRING A CLAIM. MOREOVER, IF YOUR EMPLOYER RETALIATES, THEN YOU HAVE A STRONGER CLAIM BECAUSE YOU REPORTED IT. YOU SHOULD USE THE WORDS SEXUAL HARASSMENT WHEN YOU REPORT IT.
Also, many Courts hold that an employee’s fear of retaliation does not excuse the employee from reporting the harassment and have dismissed cases because the employee failed to follow the employer’s reporting procedures.
IF YOUR HARASSER IS THE PERSON YOU ARE SUPPOSED TO REPORT THE HARASSMENT TO, ACCORDING TO THE COMPANY’S POLICY, THEN REPORT IT TO THE HARASSER’S SUPERVISOR OR OTHER HIGHER-UPS.
It is important to report sexual harassment in writing and include as many details as possible, even though it may be embarrassing and traumatic. You can report it informally through email. Keep a copy of everything you report.
Once you report it, your employer has an obligation to take prompt remedial measures to prevent the sexual harassment from continuing. If your employer conducts an investigation, the EEOC emphasizes that workplace investigations must be thorough, impartial, prompt, and confidential. Employers should conduct investigations by using a neutral party that gathers information from all involved parties. Investigations should be documented, and the employer should take appropriate action based on the findings.
Sadly, some employers engage in sham investigations with a preconceived result in mind, designed to ultimately limit the company’s liability rather than address the employee’s legitimate concerns.
You should not have to work in close proximity to your harasser after you report them. You should tell your employer that you do not want to work with your harasser. Your employer is not required to terminate your harasser except where termination is the only way to end the harassment. However, if the harassment persists after you report your harasser, you should notify your employer immediately. If you ever feel that you are in immediate danger, call 911.
Your employer should not put you in a worse position because you reported the harassment. If this occurs, you should complain to your employer in writing about how you are worse off because you reported your harasser. For example, if your employer changes your assignments, hours, or location, rather than changing your harasser’s work assignments or location.
Several courts have held that forcing an employee to continue to work with her harasser is not exercising reasonable care to prevent harassment, and it can create an intolerable work environment.
Sadly, some employers will either do nothing or change your assignments so that you will have greater interaction with your harasser because they want you to quit. This causes even further trauma. While your mental and physical health come first, you should be aware that if you quit, depending on the circumstances, you may not be able to bring a claim against your employer. If possible, you should consult with me or another experienced employment lawyer before quitting.
The legal implications of being sexually harassed by a co-worker as opposed to a supervisor are very different. Generally, employers are only liable for co-worker sexual harassment if they knew or should have known about it and failed to take corrective action. If you are being harassed by a co-worker, the courts place the onus on you to notify your employer about the harassment. Once your employer has notice of the harassment, they are required to take effective action to stop it.
This means if you are being sexually harassed by a co-worker, you should report it to a supervisor or human resources immediately in writing. It doesn’t have to be formal; you can send an email or even a text. Just make sure you document that you reported it and keep a record of what you reported. If the harassment continues, you should continue to report it and inform your employer that the harassment has not ceased. Otherwise, you may not have a claim against your employer. Employers are liable for harassment by co-workers only if it can be proven that they were negligent in handling the situation.
Co-Worker Sexual Harassment vs. Supervisor Sexual Harassment
Harassment by a Client or Customer
Employers have a duty to protect their employees. As an employee, you have the right to sue your employer for harassment by a client or a customer. However, employers are only liable if they knew or should have known about the harassment and failed to take the necessary steps to prevent or stop it. These types of claims generally require you to report the harassment, and depend on how the employer responds to the complaint.
Sexual harassment in the workplace in any form is traumatizing. Employees often experience feelings of violation, discomfort, and a sense of powerlessness. It creates a culture of objectification and disrespect, making it difficult to feel safe and do your job. It causes profound psychological distress, such as posttraumatic stress disorder (PTSD), panic attacks, depression, and anxiety, which lead to physical problems such as headaches, sleep problems, stomach problems, weight loss/gain, and high blood pressure that significantly impair your quality of life.
Seek professional help and inform your healthcare providers.
If you are experiencing sexual harassment at work, you should seek professional help from medical doctors and therapists. Not only will it help you mentally and physically, but it will also be beneficial if you bring a claim against your employer. It is essential to inform your doctors about how your work situation is impacting you. However, if you are unable to afford professional help, medical records are not the only way to establish emotional distress and other damages. Juries can consider testimony from you, as well as friends, family, and coworkers, to understand the impact of the harassment.
The Impact of Sexual Harassment
Retaliation
If a manager, supervisor, or administrator fires you or takes any other type of materially adverse action against you for reporting sexual harassment or discrimination, you may have a claim against your employer for retaliation.
It is illegal for an employer to retaliate against you for reporting sexual harassment or discrimination. Reporting sexual harassment is protected activity. It is helpful to your claim if your employer’s retaliatory conduct occurs close in time to your complaint of sexual harassment or discrimination.
Courts take a broad view of what constitutes retaliation. Retaliation can be subtle or blatant. It consists of any negative action taken by an employer that is severe enough to deter a reasonable employee from raising concerns or reporting discrimination or harassment.
Below is an inexhaustive list of examples of Retaliation. However, retaliation is not limited to what is set forth below and consists of many things:
- Reprimanding the employee shortly after they report harassment or discrimination.
- Changing the employee’s schedule
- Denying the employee training opportunities
- Denying the employee a promotion
- A reduction in pay
- A reduction in hours
- Giving an employee a performance evaluation that is lower than it should be
- Transferring the employee to a less desirable position ot location
- Subjecting the employee to increased scrutiny
- Leaving the employee out of important meetings
- Constantly criticizing the employee
Retaliation does not need to be employment or workplace-related if it stems from you reporting sexual harassment or discrimination. Examples of non-work related retaliation include:
- Your employer takes action against a family member.
- Your employer disparages you to others.
- Your employer makes a false report about you to the authorities.
- It can also continue even after your employment ends.
Sex discrimination involves treating someone unfavorably because of that person’s sex.
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex in all aspects of employment, including hiring, firing, compensation, job assignments, promotions, layoffs, training, fringe benefits, and any other term or condition of employment.
Discrimination based on sex claim requires you to demonstrate: (1) membership in a protected class; (2) you satisfactorily performed your job; (3) you experienced an adverse employment action; and (4) you were treated differently from similarly situated employees outside your protected class.
An adverse employment action is a significant change in your employment status, such as termination, demotion, decrease in pay, reassignment with significantly different responsibilities, or any other action that inflicts economic harm.
Unfortunately, reporting harassment or discrimination does not shield you from discipline or discharge if your employer has legitimate reasons. But your employer must have a non-retaliatory and non-discriminatory reason for their actions. Your employer cannot make up a reason to terminate you when the real reason is discriminatory or because you reported harassment or discrimination. The burden is on the employee to demonstrate that the employer’s reason for terminating you is a pretext, meaning a dishonest reason not based on facts.
In order to pursue a claim for sexual harassment or discrimination:
- Your employer must have at least 15 employees; and
- You must also file a charge of discrimination with Equal Employment Opportunity Commission (EEOC) or South Carolina Human Affairs Commission (SCHAC) within 300 days of the alleged discriminatory conduct. It is preferable to have an experienced employment lawyer draft your charge. However, you don’t need a lawyer to file a claim with the EEOC or SCHAC. You can file a claim with these agencies on your own. See https://www.eeoc.gov/how-file-charge-employment-discrimination Or go to the SC Human Affairs Commission website. https://schac.sc.gov/employment-discrimination/how-file-employment-complaints.
Discrimination Based on Sex
Have You Been Sexually Harassed or Sexually Discriminated Against?
If you believe you have a sexual harassment, discrimination, or retaliation claim, please contact my office or reach out to me through our website. Depending on the circumstances, I may be able to file a lawsuit on your behalf.