Sexual Harassment in the Workplace
Introduction
In the employment context, sexual harassment is defined as unwelcome sexual advances imposed upon an employee by someone in a position of authority or colleague. Such unwanted sexual advances may come in the form of sexual jokes, repeated offensive comments or looks, intentional body contact, indecent propositions, or forced sexual relations.
At the federal level, sexual harassment in the workplace is prohibited under Title VII of the Civil Rights Act. Under Title VII, an employer cannot discriminate with regard to any term condition or privilege of employment, and it protects employees against discrimination based on race, color, national origin, sex, and religion. Sexual harassment is a form of sex-based discrimination and is therefore prohibited under Title VII.
Title VII applies to employers who have 15 or more employees. An “employee,” for purposes of the federal statute, can include part-time employees, trainees, volunteers, and job applicants. Sexual harassment can occur in the workplace, at offsite events, or even online. An offsite event, for example, could be a trade show, a client visit, and office parties.
In addition to the federal right, most states have their own sexual harassment statutes that offer further protection and legal remedies. For example, in Tennessee the sexual harassment laws apply to employers with eight (8) or more employees. Tenn. Code Ann. § 4-21-102.
What constitutes sexual harassment?
Conduct qualifies as sexual harassment in the workplace if it: (1) was unwelcome, (2) involved verbal or physical conduct of a sexual nature, and (3) involved a quid pro quo and/or a hostile work environment.
A quid pro quo occurs when an employee or job applicant is promised advancements in the workplace by an employer, executive, supervisor, or manager in exchange for sexual favors. Conversely, a quid pro quo may occur when the employee or applicant is threatened detrimental action as a result of noncompliance with the sexual favor.
For example, adverse action may include a threat that an applicant will not be hired or that a current employee will be terminated, demoted, or moved to a different department or shift as a result of not complying with the sexual favor. A quid pro quo could also occur where a manager has a consensual relationship with one employee who receives benefits as a result of the relationship to the detriment of an employee who is not receiving those benefits.
A hostile work environment occurs when unwelcome conduct of a sexual nature unreasonably interferes with an employee’s work performance or creates an intimidating work environment—regardless of whether the conduct is directly tied to a job benefit or detriment.
For hostile work environment, an employee must show:
that the employee was a victim due to a protected condition (i.e. sex, race, sexual orientation, gender identity, and national origin);
that the employee was the subject of unwelcome sexual harassment;
that the harassment was based on sex;
that the harassment was sufficiently pervasive to effect term, condition, or privilege of employment; and
that the employer knew, or should have known, or is deemed to have known, about the harassment and failed to take prompt, corrective action.
A qualified sexual harassment attorney can help you determine whether your case qualifies as sexual harassment in the workplace.
Timeframe and Procedure
The timeframe by law and the procedure for bringing a claim for sexual harassment in the workplace is contingent on a few factors. These factors include where you are located, how large your employer is, and whether your specific case is controlled by state law, federal law, or both. The required timeframe could be as short as 180 days, depending on your specific circumstances, so it is best to contact a qualified sexual harassment attorney as soon as possible to make sure you do not miss out on enforcing your employment rights.
In Tennessee, for example, although the statute of limitations for sexual harassment in the workplace is one year after the discriminatory practice ceases, you only have 180 days from the date of the last harassing or discriminatory behavior to file a complaint with the Tennessee Human Rights Commission. The Tennessee Human Rights Commission is a governmental agency that has a process for handling complaints of discrimination.
If your Tennessee employer has between eight (8) and fifteen (15) employees, you are not required to file a complaint with the Tennessee Human Rights Commission to preserve your claim to a civil lawsuit. A qualified sexual harassment attorney can help walk you through the pros and cons of the Tennessee Human Rights Commission procedure compared to a civil court of law and assist you in the process.
Even if you have already initiated the complaint process with the Tennessee Human Rights Commission, it is important to retain legal counsel as soon as possible to ensure you have someone advocating on your behalf. More likely than not, your employer has retained counsel.
If your employer has more than fifteen (15) employees, your case is subject to federal law and you will have to file a complaint with either the U.S. Equal Employment Opportunity Commission (“EEOC”) within 300 days or the Tennessee Human Rights Commission within 180 days. The EEOC is the federal governmental agency that maintains a process for handling complaints of sexual harassment by employers. The EEOC’s procedure is very similar to the Tennessee Human Rights Commission procedure.
Damages
If your employer is found to have been responsible for sexual harassment in the workplace, you could be entitled to injunctive relief, reinstatement, back pay, front pay, compensatory damages, punitive damages, and an attorney’s fee award.
Conclusion
If you have experienced sexual harassment in the workplace, it is imperative to retain a qualified attorney as soon as possible to represent you to ensure your rights are being protected and that you are receiving the full value of your claim. If nothing else, it is best practice to report the sexual harassment to your employer’s human resources officer.