Sexual harassment in the workplace is as endemic as male privilege. Allegations against powerful figures including Roger Ailes, Harvey Weinstein, Kevin Spacey, Bill O’Reilly, Charlie Rose, John Conyers, Matt Lauer, and Al Franken capture media attention, but the phenomenon of unwanted sexual attention, sexual coercion, or sexual assault is perpetrated in all sectors of employment. It’s worse than an epidemic—it is business as usual.
A U.S. Equal Employment Opportunity Commission study found that in 2015, 45 percent of the total number of charges the agency received from employees working for private or state and local governments contained claims of sexual harassment. By the EEOC’s own admission, however, the number doesn’t reflect reality. Estimates suggest that 75 percent of all workplace harassment incidents go unreported.
Though state and federal laws can vary, the general definition of sexual harassment includes unwelcome or offensive conduct in the workplace that is based on the employee’s gender, sexual orientation, pregnancy, or gender identity, and which is detrimental to an employee’s work performance, professional advancement, or mental health. Unlawful sexually-based behaviors include, but are not limited to:
Sexual harassment is a kind of gender discrimination, and it is prohibited by Title VII of the federal Civil Rights Act of 1964, as well as state statutes such as the New York Human Rights Law, the California Fair Employment & Housing Act, and the Illinois Human Rights Act. Local anti-discrimination and anti-harassment laws have been enacted in New York City, Los Angeles, San Francisco, Washington, DC, and other cities across the country. Some state and local laws afford more and better protection than federal law.
A common type of sexual harassment is known as “hostile work environment” harassment. This occurs when the employee encounters sexual advances, unwelcome verbal or physical attention, or other inappropriate sexually-based behavior that is so abusive, intimidating, or offensive that it unreasonably interferes with the victim’s ability to perform her or his work. That behavior can also take the form of frequent or severe non-sexual comments, such as comments about one gender, even made by someone of that gender. The “severe or pervasive” standard is not required under some state and local laws—simply treating women “less well” is enough.
Another form of sexual harassment is known as “quid pro quo,” Latin for “this for that,” which refers to situations where an employee’s submission to or rejection of sexual demands negatively influences employment decisions. For example, it may be considered quid pro quo harassment if a boss, manager, or other superior with authority either demands or implies that an employee must go out on a date, engage in sexual banter or even provide sexual favors, in return for being hired, keeping a job, or getting a promotion.
Any employee – from an hourly, entry-level worker to a highly paid executive – can be a victim of sexual harassment. Similarly, the harasser can be a CEO, business owner, supervisor, or co-worker, or even a non-employee, client, or customer.
One prevailing myth is that sexual harassment only arises in male-on-female contexts. In truth, the harasser and victim can be the same or opposite genders, sexual orientations, or gender identities. Though most situations of sexual harassment involve a male perpetrator against a female employee, that is certainly not true of all cases.
Another misconception about sexual harassment is that the perpetrator must directly subject the victim to the unlawful behavior. In reality, an employee can also be a victim when simply exposed to conduct in the workplace that she or he finds offensive.
Also, an employee does not have to have been fired, demoted, or adversely treated. To bring a valid sexual harassment claim, the employee need only demonstrate that illicit conduct or behavior interfered with their work or created a hostile work environment.
It is commonly understood that most victims of sexual harassment never make a claim. Their strategies might include trying to avoid the perpetrator, denying or downplaying the seriousness of the wrongful behavior or the harm they suffered, blaming themselves, or attempting to ignore, forget, or endure the harassment.
Why don’t more women report? Because of justifiable (and often accurate) fears that HR is there to protect the company, that if it comes down to believing them or the boss, it is the boss who will be believed, that governmental agencies won’t conduct a thorough investigation or provide an adequate remedy, that they will be subjected to blame, social pressure, ostracism, or retaliation. In short, their report will be useless or worse than useless.
These fears are real but things have definitely gotten better. With good legal and strategic advice, the law can afford you meaningful protection. The attorneys at Outten & Golden have successfully represented clients whose jobs, careers, and livelihoods have been jeopardized by sexual harassment and retaliation in the workplace. We have obtained compensation for the mental, physical, and economic harm they have suffered, and have helped them move forward personally and professionally.
If you have been a victim of sexual harassment at work, or if your employer has retaliated against you for complaining about sexual harassment in your workplace, please contact us today. The law provides a limited amount of time to pursue your rights.