With all the news stories about sexual harassment allegations in Hollywood, the tech industry, and the media, it may seem like the only viable harassment claims are those with blatant evidence and, in some cases, allegations of sexual assault.
The law, however, protects against many different kinds of harassment, and simply because your case does not involve sexual assault or being propositioned does not mean you should have to suffer through harassing conduct on the job.
Cases involving groping, sexual assault, and quid pro quo threats (“have sex with me or you won’t be hired”) are still an unfortunate reality for too many employees, and these cases can present strong, clear evidence of illegal sexual harassment.
But less extreme, though still noxious, types of cases can also rise to unlawful sexual harassment; for example, claims involving verbal harassment, lewd text messages/jokes, and retaliatory acts can violate Title VII of the 1964 Civil Rights Act and other anti-discrimination laws. And it’s important to know how to protect your legal rights if this is happening to you on the job.
The Equal Employment Opportunity Commission (EEOC) notes that sexual harassment can occur in a variety of ways, including:
In general, two forms of sexual harassment are evaluated by federal courts. The first is “quid quo pro” harassment where a plaintiff shows that a tangible employment action (for example, termination, demotion, pay cut) “resulted from a refusal to submit to a supervisor’s sexual demands.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).
The second form of sexual harassment is “hostile work environment” harassment, in which conduct that does not result in a tangible employment action is nevertheless so “severe or pervasive” that it creates an abusive working environment. Ellerth, 524 U.S. at 754.
To prove a hostile work environment/harassment claim, an employee must prove:
Note: some federal courts use the term “tangible employment action” instead of “quid pro quo” to describe harassment that results in something like a termination, demotion, or pay cut. See, e.g., Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1245 n. 4 (11th Cir. 2004).
Of course, the way in which courts determine the seriousness of the harassment “is not subject to any precise mathematical test.” Armstrong v. Whirlpool Corp., 363 Fed.Appx. 317, 324 (6th Cir. 2010). And, on the one hand, Title VII is not a “code of workplace civility” and “[s]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to a hostile work environment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
At the same time, gender based comments and remarks will weigh in favor of a pervasiveness finding when they are “commonplace, ongoing, and continual” in nature.
Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998).
Importantly, sex-based conduct and comments “need not be directed at a plaintiff in order to constitute conduct violating Title VII,” although courts generally consider actions specifically directed at a plaintiff to be more severe. Abeita, 159 F.3d at 251.
The universe of actionable sexual harassment cases is broader than the small number of cases that actually generate headlines in the news. So if your boss or coworkers are, for example, routinely:
then you you should make clear that you disapprove of their conduct and find out more information about how to protect your legal rights, including talking with an experienced sexual harassment lawyer.
Hiring a proven and effective advocate is critical to obtaining the maximum recovery in an employment discrimination case. Eric Bachman, Chair of the Firm’s Discrimination Practice, has substantial experience litigating precedent-setting individual and class action discrimination cases. His wins include a $100 million settlement in a disparate impact Title VII class action and a $16 million class action settlement against a major grocery chain. Having served as Special Litigation Counsel in the Civil Rights Division of the Department of Justice and as lead or co-counsel in numerous jury trials, Bachman is trial-tested and ready to fight for you to obtain the relief that you deserve.
Bachman writes frequently on topics related to promotion discrimination, harassment, and other employment discrimination issues at the Glass Ceiling Discrimination Blog.
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