© 2017 Jennifer Sokolowsky

AvvoStories | Sexual harassment: What are the legal options for both sides?

December 29, 2017

Sexual harassment is in the spotlight, with an avalanche of high-profile accusations and falls from grace. But the issue doesn’t just affect politicians and well-known celebrities. The increased awareness around the issue has also brought more sexual harassment complaints at all kinds of companies.

 

The stakes involved in workplace sexual harassment allegations are clearly higher than ever. It’s important for anyone who believes they have been sexually harassed or who has been accused of harassment to be aware of their options for dealing with the situation, both at the workplace and in the legal system.

 

What is workplace sexual harassment?

 

The federal Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.”

 

Several factors are considered when determining whether behavior rises to the level of sexual harassment, including whether the recipient finds it offensive and whether the behavior would be considered offensive by the average person.

 

Sexual harassment is considered gender discrimination under Title VII of the Civil Rights Act. This federal law applies to private companies or government agencies with 15 or more employees, but similar local laws may apply to smaller companies.

 

Sexual harassment can take many forms:

 

Quid pro quo sexual harassment occurs when an employer makes a decision based on whether an employee accepts sexual advances. This could mean that the employer makes sexual conduct a condition of employment, or that the employee is fired for rejecting sexual advances.

Sexual harassment can also contribute to a hostile work environment. To qualify as creating a hostile work environment, harassment must be “frequent, severe and pervasive” and interfere with an employee’s ability to do his or her job. Many employment laws state that a work environment can be considered hostile or abusive if a “reasonable person” would see it as such.

 

Harassment doesn’t have to include physical touching or overt sexual advances. Harassment can also be verbal, including discussions and jokes of a sexual nature, or environmental, such as when sexual material is shown or shared.

 

A person of any gender can be the victim of sexual harassment, and harassers may be supervisors, co-workers, agents of the employer, or non-employees who have contact with the victim in a work setting.

 

If you believe you have been sexually harassed

 

If you believe you have been sexually harassed, it’s important to understand your rights and the various courses of action that you can take. These can include reporting the issue to your employer, filing a complaint with the federal Equal Employment Opportunity Commission (EEOC) or a comparable state agency, or filing a lawsuit against the harasser and/or your employer.

 

It’s wise to consult an attorney who specializes in sexual harassment before you take any action, so that you understand your options.

 

Dealing with harassment

 

If you are being sexually harassed, one of the first steps may be to confront your harasser and tell them to stop.

 

“In many cases where sexual harassment is alleged, the perpetrator may not realize the impact of their actions, or how they are received.  For this reason, it is recommended that victims make an attempt to advise the other party about how they feel. This serves to set boundaries between them and the person engaging in the conduct,” said Mirande Valbrune, an employee relations and compliance expert and employment attorney.

 

A victim of harassment can also confront the harasser in writing, which may be more comfortable and offers the advantage of leaving a written record.

 

However, “A victim is never required to confront the harasser,” said Jennifer B. Compton, a partner with Shumaker, Loop & Kendrick in Sarasota, Florida, who specializes in handling harassment cases.

 

Employees who believe they are being harassed should document what’s happening as thoroughly as possible, by keeping a record of incidences, saving electronic material, or using other methods of providing evidence.

 

Steven Mitchell Sack, an employment law attorney with The Law Offices of Steven Mitchell Sack in New York, also suggests talking to trusted co-workers about what happened. You may find that others have also experienced sexual harassment, which could show a pattern of conduct that was allowed to continue.

 

Reporting sexual harassment to your employer

 

If the behavior continues — or if there is a pattern of sexual harassment — the next step would be to report the harassment to your employer.

 

A properly drafted company sexual harassment policy should identify at least two lines of reporting for a complaint, according to Compton. Keep in mind that some companies may have time limits on reporting allegations.

 

The law holds employers responsible for taking reasonable care to prevent and resolve sexual harassment, and it is illegal for an employer to retaliate against an employee for reporting harassment.

 

“Most employers take such reports seriously and will promptly investigate,” Valbrune said.

 

Filing a claim with a state or federal anti-discrimination agency

 

If the harassment is not resolved by reporting it to your employer — or if you want to pursue the case through other avenues — you can file a claim with the EEOC, the federal agency that enforces anti-discrimination laws in the workplace.

 

“In some cases, the victim may not feel as if her or his organization is sympathetic or competent to conduct a fair investigation. Or, she or he may reasonably feel as if any type of reporting within the organization will have negative consequences. For that reason, she or he may go directly to a public agency,” said , an attorney specializing in preventing violence against women and children.

 

It’s important to not wait too long to file. You only have 180 days after a harassment incident to file a claim with the EEOC, although this may be extended depending on local laws.

 

You can also file a claim with an anti-discrimination agency in your state or locality, known as Fair Employment Practices Agencies (FEPAs). The EEOC has agreements with some local FEPAs to automatically file a claim in one agency if it is filed in the other.

 

Filing a lawsuit

 

If your case is not resolved through diplomacy and mediation, and the EEOC finds your claim to be viable, the agency may issue a “right to sue” letter that allows you to file a civil lawsuit against your harasser and/or your employer over the sexual harassment under Title VII.

 

A successful case may result in:

 

  • Reinstatement if you lost your job.

  • Damages for emotional distress.

  • Back pay.

  • Compensation for attorney fees and court expenses.

 

Keep in mind that your employer may not be liable under Title VII if the employer is determined to have used “reasonable care” to prevent and correct the harassment. This could be the case, for example, if your company has an actionable policy in place but you failed to complain or make the company aware of the harassment.

 

If you are accused of sexual harassment

 

If you’ve been accused of sexual harassment at work, your company is required to investigate. Most often, the company’s human resources department will conduct the investigation, but an outside investigator may be brought in. You may be suspended from work during the investigation.

 

If you are the target of an internal sexual harassment investigation, it’s crucial for you to cooperate, in order to get your side of the story heard. It’s also important to be honest about your behavior and to apologize for any misconduct.

 

“To the extent possible, the accused should adopt the position that even if the allegations are false, they have a healthy and appropriate curiosity in understanding why the victim feels as they do. The failure to show this level of professionalism during an investigation carries a reputational risk for the accused, even if they are ultimately found innocent,” Valbrune said.

 

If the internal investigation finds that you sexually harassed someone, the penalties can range from a required apology to losing your job.

 

An employment law attorney can help you navigate sexual-harassment accusations by advising you of your options and assisting in making sure you take correct steps.

 

Termination due to sexual harassment

 

If you are fired for sexual harassment, you may still be able to negotiate a severance and/or a neutral reference from the company. However, if you are an at-will employee, your employer may be legally able to fire you for any reason — except for illegal discrimination — or no reason at all.

 

Suing for defamation of character

 

If you believe false allegations about sexual harassment have been made about you, you may have the option of suing for defamation of character.

 

However, winning such a suit can be a challenge. In order to show defamation, you must prove that the person: (1) maliciously, (2) published, (3) a false statement, (4) that was defamatory, and (5) that the publication resulted in damages.

 

According to Brian Leinhauser, founding partner of The MacMain Law Group LLC in Malvern, PA, there are several things to keep in mind if you are considering a defamation suit:

 

If the factual statements are true and can reasonably be interpreted as sexual harassment, then there is no basis for a defamation claim.

 

The benefit or harm caused by additional exposure to the situation should be analyzed as well.

Cost of litigation should also be considered. “A defamation suit can be lengthy and expensive,” Leinhauser said.

 

“The accused must consider whether the time, energy, and effort of litigation that could take months or even years is worth the outcome desired.  Even where the accusation is known to be false or the proof is easy, it may be difficult to achieve the desired result,” Leinhauser said.

 

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