The basics of unlawful sexual harassment in the workplace

Sexual harassment in employment is illegal under both federal and state laws.

While Americans would like to think we have put sexual harassment - a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 - in employment behind us, the media regularly includes stories about specific allegations of sexual harassment in the workplace, including those in administrative complaints and civil rights lawsuits on both the federal and state levels.

Sexual harassment lawsuit example

In November 2015, the Equal Employment Opportunity Commission ("EEOC") released a press release about a settlement the agency reached with a national grocery chain in a federal sexual harassment suit.

In that case, the EEOC (the federal agency with responsibility for enforcing U.S. anti-discrimination in employment laws) sued the grocery chain in federal court, alleging that the employer had not protected a teenage female employee throughout her employment against sexual harassment by a male co-worker. The settlement required the defendant employer to:

  • Pay money damages to the victim;
  • Redistribute its sexual harassment policy to its employees; and
  • Provide sexual harassment training to managers, including the duties of a supervisor who receives a sexual harassment allegation from an employee.

Sexual harassment basics

There are two types of sexual harassment. The first type is a quid pro quo sexual harassment, which happens when a supervisor or manager makes a sexual favor a condition of employment or of a positive term or condition of employment such as a promotion, benefit or plum assignment. Alternatively, the sexual favor also could be a condition of preventing negative employment action.

The second type is sexual harassment as the result of a hostile work environment in which unwanted sexual behavior that is either severe or pervasive interferes with work performance or creates a work atmosphere that is intimidating, hostile or offensive. Examples of such behavior are crude humor, offensive gesturing, unwanted touching or sexual assault, physical blocking, stalking (such as repeated requests for sexual favors or dates), pornography and more.

The harasser may be male or female against a victim of either gender. The offender may be a supervisor, colleague or nonemployee in the workplace like a contractor, client or customer.

Employer responsibilities

The EEOC has several suggestions for employers to avoid the occurrence of sexual harassment:

  • Establish an official policy against sexual harassment;
  • Create, distribute and enforce an effective grievance procedure that protects victims and witnesses;
  • Affirmatively publicize employer disapproval of sexual harassment throughout the workplace;
  • Conduct swift and thorough investigations, stop any more harassment and implement appropriate sanctions for offenders; and
  • Follow-up to ensure that the harassment has ceased.

The value of legal counsel

Every employer should consult an attorney for assistance with establishing policies and procedures that comply with the legal standards established by federal and state laws, regulations, agencies and courts. Legal counsel will advise an employer about responding to complaints, initiating investigations, and implementing disciplinary procedures. If necessary, a lawyer will help an employer client respond to an agency complaint or lawsuit, whether it is to conduct settlement negotiations or advocate against the charge before an agency or in court.

On the other side of the coin, any victim of sexual harassment at work should seek legal advice as soon as possible because legal remedies in this area of law tend to have relatively short and strict deadlines. A lawyer can advise the employee about the legal options available for recovery, which may be through a state or federal agency or court.

The legal team at SFMS has substantial experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Chiharu Sekino (csekino@sfmslaw.com) or Alec Berin (aberin@sfmslaw.com). We can also be reached toll-free at (866) 540-5505.

Shepherd, Finkelman, Miller & Shah, LLP, is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Wisconsin. SFMS also maintains affiliate offices in England, and Milan, Italy, and is an active member of Integrated Advisory Group ( www.iaginternational.org), which provides our firm with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.