Sexual Harassment: What Is It? How Can You Prevent It? What Do You Do If You Become A Victim of It?

Monday, October 10, 2016

Sexual harassment claims are frequently in the news. Recently they lead to the ouster of the man who started Fox News, Roger Ailes. There are many people who are miserable to work for or with, but, to have a viable legal action for sexual harassment, the situation has to turn ugly.

Sexual harassment is a type of sex discrimination that violates Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination. Title VII covers employers with 15 or more employees (New Jersey law covers all employers), government employers, staffing agencies and unions (as does state law).

What is sexual harassment?

Sexual harassment includes,

  • Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.
  • When this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile or offensive work environment illegal sexual harassment has occurred.

Sexual harassment can occur in just about any employment situation.

  • The sex of the harasser and victim doesn’t matter. They can be of different sexes or the same sex.
  • The harasser can be the victim’s supervisor, another supervisor, a co-worker, a customer, a contractor or the employer’s owner.
  • The person filing the lawsuit need not be the target of the harassment, only someone affected by the offensive conduct.
  • The harasser’s conduct must be unwelcome.

The victim need not be discharged or demoted to have a valid legal claim for sexual harassment.

What makes harassment illegal?

Employees have the right to work in an environment free from discriminatory intimidation, ridicule and insult whether based on sex, race, religion, or national origin. A plaintiff can establish that Title VII has been violated by proving that discrimination based on sex created a hostile or abusive work environment. A situation may be hostile depending on,

  • Whether the conduct was verbal, physical, or both
  • How frequently it was repeated,
  • Whether the conduct was hostile and patently offensive,
  • Whether the alleged harasser was a co-worker or a supervisor,
  • Whether others joined in committing the harassment, and
  • Whether the harassment was directed at more than one person.

For harassment to violate Title VII it must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

  • The harasser’s conduct would be evaluated from an objective standpoint of a “reasonable person.” The alleged acts should be looked at it in the context in which the alleged harassment took place and how a reasonable person would react to a similar situation.
  • Generally a single or a few incidents normally would not create an abusive environment. But a single, unusually severe incident of harassment may be enough to be a Title VII violation. The more severe the harassment, the less the plaintiff needs to show a series of incidents especially if the harassment is physical.
  • The conduct must be unwelcome. A claim the conduct was “voluntary” such that the employee was not forced to participate against her will is not a defense. The issue is whether the victim by her conduct showed the alleged sexual advances or language was unwelcome.

How can an employer be made responsible for the harassment?

Employers are generally liable for unlawful harassment by supervisors. The reasoning behind this is,

  • An employer is responsible for the acts of its supervisors,
  • Employers should be encouraged to prevent harassment, and
  • Employers should be encouraged to avoid or limit the harm from harassment.

The employer is always responsible for harassment by a supervisor if it results in a tangible employment action (such as a termination, demotion or cut in pay). If not, the employer might avoid liability or limit the damages in the case by showing,

  • The employer used reasonable care to prevent and promptly correct any harassing behavior, and
  • The employee unreasonably failed to use preventive or corrective opportunities provided by the employer or to avoid harm.

An employer can be held responsible for sexual harassment by a co-worker or non-employee when the employer (or its agents or management) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.

What should I do if I’m being sexually harassed?

If you find yourself being sexually harassed,

  • Takes notes of what happened. Write down what was said or done, where, the time and day and the names of any witnesses. Also take notes of any complaints about the harassment that you’ve made directly to the harasser, members of management or your employer’s human resources department.
  • If the harassment is in the form of inappropriate texts, emails or photos save all the material.
  • If the harassment is verbal, in person and there are no other witnesses you may want to consider recording conversations with the harasser. In New Jersey it’s legal to record a conversation as long as one party to it is aware of the recording. If you have an employee handbook see if there is a policy against recordings in the workplace. If so, don’t do it. If you choose to do this you need to be very careful and not speak in a way the harasser may claim entrapped him or her.
  • Tell the harasser to stop. A plaintiff must show the actions or words were unwelcome. By complaining about the harassment you make it clear you do not like or want to be subjected to the words or actions. If you don’t feel comfortable confronting the harasser alone, do it in the presence of someone from human resources or make an internal complaint of harassment.
  • If the harassment doesn’t stop, or you don’t want to confront the harasser, file an internal complaint of sexual harassment with your employer.
  • If the employer takes actions against you because of your complaints of sexual harassment it would be violating your rights and the law. If this happens you could have a separate legal cause of action against the employer for retaliation.
  • If the harassment doesn’t stop or the situation hasn’t been resolved to your liking, contact our office at once.

No one should be subjected to sexual harassment at work. If you believe you’re being sexually harassed, know that you have legal rights and protections. Call our office at 609-683-7400 or fill out our online form so we can schedule an initial consultation. We will listen to your facts, advise you on the law, and make recommendations to maximize your chances of social and economic justice.