Employment Lawyers
The Courts have stated, that one of the protections of the discrimination laws is to enjoy a work place, which is free of harassment based on illegal grounds. Yet, harassment remains a pervasive problem in American workplaces. The number of harassment charges filed with the Equal Employment Opportunity Commission (EEOC) and state Fair Employment Practices (FEP) agencies has risen significantly in recent years.
In employment law, hostile environment sexual harassment refers to a situation where employees in a workplace are subject to a pattern of exposure to unwanted sexual behavior.
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. As the Supreme Court stated, “Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms.”
Legal Options for You against Workplace Sexual Harassment
In the U.S. there are a number of legal options for you: mediation, filing with the EEOC or filing a claim under a state Fair Employment Practices (FEP) statute (both are for workplace sexual harassment), filing a common law tort, etc. Not all sexual harassment will be considered severe enough to form the basis for a legal claim. Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. Supervisory duties can be accompanied by requirements to attend counselling or special training sessions and harsh “shape up or ship out” written warnings. However, most often there are several types of harassing behaviors present, and there is no minimum level for harassing conduct under the law. You (the victim) should use any employer complaint mechanism or grievance system available.
Remember that a single isolated incident will not be enough to prove hostile environment harassment unless it involves extremely outrageous and egregious conduct. The courts will try to decide whether the conduct is both “serious” and “frequent.” Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment.
In order to establish a prima facie case for hostile work environment sexual harassment, you must prove the following five elements:
1. You have suffered intentional, unwanted discrimination because of your sex.
2. The harassment was severe or pervasive.
3. The harassment negatively affected the terms, conditions or privileges of your work environment.
4. Management knew about the harassment, or should have known, and did nothing to stop
Note: You (a workplace harassment complainant) must file with the EEOC and receive a “right to sue” clearance, before you can file a lawsuit against a company in federal court.
When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.
Retaliation is as illegal as the sexual harassment itself, but also as difficult to prove. Retaliation is illegal even if the original charge of sexual harassment was not proven. Retaliation has occurred when you suffer a negative action after you have made a report of sexual harassment, file a grievance, assist someone else with a complaint, or participate in discrimination prevention activities.
How to Make Charges?
Charges may be filed by mail or by telephone. You may Contact the nearest EEOC office. If there is not an EEOC office in the immediate area, call free 800-669-4000 or 800-669-6820 (TDD) for more information. In order to avoid delay, call or write beforehand, if you need special assistance, such as an interpreter, to file a charge.
There are strict time frames in which charges of employment discrimination must be filed. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, adhere to the following guidelines when filing a charge.
Civil Rights Act (Title VII) - You must file charges with EEOC within 180 days of the discriminatory act. However, in states or localities, where there is an antidiscrimination law and an agency authorized to grant or seek relief, a charge must be presented to that state or local agency. Furthermore, in such jurisdictions, you may file charges with EEOC within 300 days of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated its processing of the charge, whichever is earlier. It is best to contact EEOC promptly when discrimination is suspected. When charges or complaints are filed beyond these time frames, you may not be able to obtain any remedy.
# Americans with Disabilities Act (ADA) - The time requirements for filing a charge are the same as those for Title VII charges.
# Age Discrimination in Employment Act (ADEA) - The time requirements for filing a charge are the same as those for Title VII and the ADA.
Equal Pay Act (EPA) - Individuals are not required to file an EPA charge with EEOC before filing a private lawsuit. However, charges may be filed with EEOC and some cases of wage discrimination also may be violations of Title VII. If an EPA charge is filed with EEOC, the procedure for filing is the same as for charges brought under Title VII. However, the time limits for filing in court are different under the EPA; thus, it is advisable to file a charge as soon as you become aware the EPA may have been violated.
For more detailed information, please contact the EEOC office nearest to you.
Questions to Ask Complainants and Witnesses
When detailed fact-finding is necessary, the investigator interview you, the harasser, and third parties, who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. The following are examples of questions that may be appropriate to ask you(complainant) and potential witnesses
# Questions to Ask the Complainant:
• Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
• How did you react? What response did you make when the incident(s) occurred or afterwards?
• How did the harassment affect you? Has your job been affected in any way?
• Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
• Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• How would you like to see the situation resolved?
• Do you know of any other relevant information?
# Questions to Ask Witnesses
• What did you see or hear?
• When did this occur?
• Describe the alleged harasser’s behaviour toward the complainant and toward others in the workplace.
• What did the complainant tell you? When did s/he tell you this?
• Do you know of any other relevant information?
• Are there other persons who have relevant information?
The standard of finding the employer liable is very high —you must show that the employer was actually aware of the behavior, or should have been aware of it under reasonable circumstances. It is also not enough to show that sexually suggestive behavior occurred —you must show that the employer could have taken reasonable steps to stop the behavior. For example, the employer could not be held liable for such behavior if it occurred at a bar after work.
Remember, each situation requires an individual determination so that the employer is carefully balancing the need to stop certain conduct (and prevent it from occurring in the future) with the risks of liability and the desire to foster a workplace environment of which employees can be proud. Work in conjunction with your company’s human resources professionals and legal counsel to assess harassment complaints. Prompt, effective resolutions are key elements for maintaining a loyal workforce and minimizing risk.
