PROVING SEXUAL HARASSMENT IN THE WORKPLACE
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
WHAT IS SEXUAL HARASSMENT?Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to both public and private employers with 15 or more employees, including state and local governments. It also applies to employment agencies, and to labor organizations, as well as the federal government. Title VII’s sexual harassment protections apply regardless of gender or sexual orientation.
WHAT KIND OF CONDUCT CONSTITUTES UNLAWFUL SEXUAL HARASSMENT UNDER TITLE VII?Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment. However, in order for such behavior to be unlawful under Title VII, the conduct needs to explicitly or implicitly affect the individual’s employment. This interference could be by affecting the work performance, or by creating an intimidating, hostile, or offensive work environment.
Some examples of conduct that may be sexual harassment include:
- Verbal or written conduct: inappropriate comments about clothing, personal behavior, or a person’s body; sexual or sex-based jokes; requesting sexual favors or repeatedly asking the employee out; sexual innuendoes; telling rumors about the employee’s personal or sexual life; or threats.
- Physical conduct: assault or rape, impeding or blocking the employee’s movement; inappropriate touching of the employee’s body or clothing; kissing, hugging, patting, stroking.
- Nonverbal conduct: Looking at the employee’s body up and down; derogatory gestures or facial expressions of a sexual nature; following or stalking the employee.
- Visual displays: Posters, drawings, pictures, screensavers, or e-mails of a sexual nature.
Generally, offensive sexual language, unwanted sexual approaches, or other physical and verbal actions of a sexual nature may all constitute sexual harassment under certain circumstances. However, in order to be actionable under Title VII, the conduct has to be severe or pervasive enough to alter the terms or conditions of the individual’s employment. In addition, the harasser could be a supervisor, a coworker, or even the owner of the company. Both federal and Florida law recognize two types of unlawful sexual harassment in the workplace: (1) quid pro quo, and (2) a hostile work environment.
- Quid Pro Quo: Occurs when a supervisor or other employee demands sexual favors. It is considered quid pro quo (latin for something for something) harassment if accepting or rejecting such behavior has a positive or a negative effect on the individual's employment.
- Hostile Work Environment: Occurs when the harassing conduct is severe or pervasive enough that the workplace is sexually intimidating and offensive. The harassment has to alter the conditions of employment in order for it to become unlawful sexual harassment.
DOCUMENTING SEXUAL HARASSMENT IN THE WORKPLACEThe collection and presentation of evidence in support of a sexual harassment claim is important. In order to be considered sexual harassment, the behavior must be not only severe and pervasive enough but also it has to be unwelcome. It is important to gather any documents and communications that might support any elements of your case.
Examples of evidence to prove sexual harassment cases may include the following:
- Your complaint to Human Resources and/or management and the Company’s response (or lack of response).
- Communications from the harasser which demonstrates the sexual nature of the behavior, such as emails, voicemails, text messages, comments on social media, etc.
- Your employee policy handbook, including the company’s written sexual harassment policies;
- Testimony from witnesses;
- Any photos or videos of incidents.
The harasser might try to defend themselves by attacking the employee’s performance. For that reason, we recommend that you keep copies of your performance evaluation(s) or any documentation that shows your work quality.
WHEN SHOULD YOU CONTACT AN ATTORNEY?If you believe you are being harassed at work, you should consult with an experienced employment attorney. An attorney can negotiate with your employer to try to end the harassment. An attorney can help you use your company’s internal complaint system, respond to the investigator’s questions, draft your agency charge, and much more. A claim for sexual harassment must be brought with the federal Equal Employment Opportunity Commission (EEOC) or your state's fair employment practices agency. Depending on your state's law, you have either 180 days or 300 days after the harassment took place to file your charge.
Our firm is experienced in employment law, if you are experiencing sexual harassment in your workplace and want one of our attorneys to review your case please contact us at the link below: