Tag Archive for: Sexual Harassment

If your workplace is laced with sexual tension or you are being singled out because of your gender, you may feel like the only way out is through the courts. But sometimes it can be hard to tell if you would be eligible to file a private civil rights lawsuit. You may be wondering just who can sue for sexual harassment.

In this blog post I will review the sexual harassment and sex discrimination portions of Title VII of the U.S. Civil Rights Act. I will also look at how these federal laws protect various possible plaintiffs. Finally, I will compare the remedies of filing a private or class action lawsuit and lodging an EEOC complaint.

What Counts as Illegal Sexual Harassment?

Sexual harassment is prohibited by state and federal law. Under Title VII of the U.S. Civil Rights Act, it is unlawful for an employer to harass you because of your sex. “Sexual harassment” is a form of gender discrimination that can include unwelcome sexual advances or touching, requests for sexual favors, and other verbal or physical harassment that is sexual in nature.

Harassment can also include offensive remarks about a person’s sex or gender expression. This is true even if the comments do not directly target the employee. For example, if a supervisor regularly makes comments about how “you can’t trust men,” or “women are never good at math,” that could be a form of sexual harassment.

Not every passing comment will rise to the level of a sexual harassment lawsuit, though. To be eligible to file a complaint your employer must have:

• Based an employment decision on a person’s sex (this includes hiring, firing, promotion, wages, tasks or shift assignments), or
• Allowed a pattern of offensive behavior so frequent or severe it creates a hostile work environment.

When teasing crosses the line into actionable harassment under the federal law may depend on your workplace and the normal demeanor of employees. The standard for a hostile work environment may be different in an office setting than on a construction site. Courts will look at whether a reasonable person would have been offended in a similar situation.

Can I Sue for Sexual Harassment If I Am a Man?

Anyone can file a lawsuit for sexual harassment, regardless of gender. Men and women both face harassment in the workplace, though sometimes it looks different depending on the sex stereotypes involved. For example, a man may be able to file a civil rights action if his employer regularly tells him to “man up” or refuses to assign him to tasks that “take a woman’s touch.”

Can I Sue if I Am the Same Sex as My Harasser?

Many people believe that a woman cannot be sexually harassed by a woman or a man by a man. That’s not true. It doesn’t matter who is performing the sexual harassment – man or woman – as long as the harassment is based on your sex. Similarly, you can sue for patterns of behavior by superiors, staff, coworkers, and even customers, depending on how your employer responds to complaints.

Can I Sue if I Am Gay?

Gay and lesbian employees face special challenges in the workplace. Until recently, there was no federal protection for sexual orientation discrimination. However, in recent years, the Equal Employment Opportunity Commission (EEOC) has begun to interpret Title VII to protect against sexual harassment based on sexual orientation. While some courts have refused to follow that interpretation, others are now willing to enforce Title VII’s prohibition against sexual harassment for the benefit of the LGBT community.

Can I Sue if I Am Trans*?

Gender identity issues and the inherent difference transgender people experience from sex stereotypes can often result in sexual harassment in the workplace. The U.S. Supreme Court and several federal courts have come to the defense of transgender employees, ruling that sexual harassment based on gender identity or gender expression are illegal under Title VII.

Can I Sue if I Am Paid Under the Table?

Undocumented workers and other cash employees can often feel trapped in a job that involves sexual harassment. Their employers may threaten to report them to the INS or the IRS if they file sexual harassment or discrimination complaints. While there are some risks involved, under the table employees are entitled to protection against sexual harassment and hostility in the workplace.

Getting Relief Through the EEOC Complaint or a Private Lawsuit

When sexual harassment happens, you have options in how to fight it. An employment discrimination attorney can help each step of the way, from filing a complaint with the EEOC or pursuing a private individual or class-action lawsuit.

Usually, a person who has a sexual harassment complaint will need to go through the EEOC administrative complaint process first, before filing a private lawsuit in federal court under the federal law. However, exceptions do exist. Your employee rights lawyer will help you decide whether any of those exceptions apply to you. Otherwise, an EEOC counselor will investigate your claim and attempt to negotiate a solution to your complaint. If you raised a valid complaint, but the EEOC cannot resolve it, it will issue a “right to sue” letter. At that point, your case can go in two directions:

EEOC Litigation

In some cases, the EEOC will elect to conduct litigation directly to get relief for the victims of sexual harassment and sex discrimination. This can result policy changes and monetary relief. But the agency’s resources are limited, and there are many valid sexual harassment complaints that they cannot represent.

Private Sexual Harassment Lawsuits

If the EEOC doesn’t take your case, or if you would prefer to have more control over your litigation, you can also file a private lawsuit, individually or on behalf of a class of people like you. If your lawsuit is successful, you will have access to several remedies:

• Reinstatement to your job or an equivalent position;
• Policy and training changes;
• Back pay (times 3) for money you lost because of the discrimination;
• Fringe benefits lost;
• Emotional distress damages; and
• Attorney fees and court costs.

Get Help Filing Your Sexual Harassment Lawsuit

A lack of resources should never prevent you from getting protection from sexual harassment. No matter who you are, our employment discrimination attorneys are here to help. If you feel like your employer is making your office or job site a hostile workplace, contact us. We’ll meet with you and help create a strategy to file a sexual harassment complaint and get you the relief you need.

When we talk about sexual harassment in the workplace, we often talk in terms of men harassing women. It may be the example that first comes to your mind when we say “sexual harassment,” and it is the example we use most often when discussing the topic. But does that mean the law prohibits only men from sexually harassing women? Not at all. In fact, the law has been interpreted to prohibit sexual harassment by men and women against people of the same and opposite gender.

In today’s posting we’ll talk about how the law on sexual harassment has been applied to situations where both the harasser and victim are the same gender. If you have questions about your own sexual harassment case, please contact Eisenberg & Baum. We’re based in New York City and have attorneys licensed in many states throughout the country; we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help you understand your sexual harassment case no matter where you are.

The Development of Same-Sex Sexual Harassment Law

We’ve noted before that many federal, state and local laws prohibit sexual harassment in the workplace on the grounds that such harassment is considered gender discrimination. The federal law that has been interpreted to prohibit sexual harassment in the workplace is Title VII of the 1964 Civil Rights Act. Though we often cite this law as prohibiting sexual harassment, the words “sexual harassment” don’t actually appear in the text of the law. Instead, Title VII states more broadly, “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex… .” The concept of sexual harassment as a form of sex discrimination developed over time after the enactment of Title VII as more women entered the workplace and the women’s liberation movement gained political and legal strength. The first United States Supreme Court decision acknowledging sexual harassment as a legal cause of action under Title VII came in 1986 with the case of Meritor Savings Bank v. Vinson. That case presented what would now be seen as a classic example of sexual harassment in which a female employee was coerced into participating in sexual acts by her male boss.

Over ten years after the Supreme Court’s decision in Meritor, the Supreme Court considered the question of whether Title VII could apply when the harasser and victim are the same gender. In that case, Oncale v. Sundowner Offshore Services, Inc., a male worker on an offshore oil platform complained about the harassing conduct of several male co-workers who allegedly engaged in both verbal and physical sexual conduct with him. The Court noted that Title VII protects both men and women from discrimination based on their sex, and held that sexual harassment by someone of the same gender can be just as illegal as harassment by a member of the opposite sex.

Following the opinion in Oncale, the key issue in same-sex sexual harassment cases is whether the harassment occurred “because of” the victim’s gender. If for example, the victim can show that the harasser harassed only members of their own gender and not the opposite gender, a court could infer that the harassment was motivated by the victim’s gender. If, on the other hand, the evidence shows that the harasser treated both men and women in the workplace the same, equally harassing both, the victim could have difficulty showing that they were harassed because of their particular sex.

Examples of Same-Sex Sexual Harassment Cases

Since the Oncale decision, there have been a number of sexual harassment cases based on same-sex harassment. In March of this year, the EEOC, the federal agency in charge of enforcing Title VII, announced it filed a lawsuit against a wireless retailer, ABC Phones of North Carolina, Inc., based on same-sex sexual harassment. The EEOC alleges that a female sales associate with the company was sexually harassed by a female colleague. The victim reported the conduct, which included both inappropriate comments and touching, to her management, but the conduct continued. The EEOC is seeking damages on the victim’s behalf, and noted in a press release that “‘[s]exual harassment is illegal, regardless of whether the harasser is female or male, or the same or opposite gender as the victim.’”

In 2014, the EEOC reached a settlement with Wells Fargo Bank in a similar case. There, several female bank tellers complained that a female manager and a female co-worker had harassed them both verbally and physically. Among other things, the harassers in that case allegedly made sexually explicit comments and gestures to the female tellers, suggested they wear provocative clothing to work, and inappropriately touched them. Again, the victims in the case reported the harassment to their employer, but the harassment did not stop. Wells Fargo settled the case with the EEOC, agreeing to pay the victims $290,000 in damages and to take preventative steps to avoid similar situations in the future.

You Don’t Have to Tolerate Sexual Harassment by Anyone

Sexual harassment can be committed by almost anyone in the workplace, male or female, manager, co-worker or customer. Women can sexually harass other women and men can sexually harass other men. If you believe you are being sexually harassed at work, no matter who is harassing you, we encourage you to contact an attorney. The attorneys at Eisenberg & Baum have years of experience handling a wide variety of sexual harassment cases and are ready to help you. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

As if understanding the law isn’t hard enough, there are times when you have to speak Latin to understand what is going on. Because our legal system traces some of its roots back to ancient Rome, you’ll often come across Latin phrases in the law like caveat emptor, ex parte, and habeas corpus. In the employment discrimination law area, one of the most important Latin phrases to understand is “quid pro quo.” Quid pro quo translates roughly to “something for something,” and in the context of sexual harassment, it is used as a short-hand way of referring to those claims where employment decisions are conditioned on an employee’s submitting to sexually harassing conduct.

In today’s posting, we’ll talk about what a quid pro quo sexual harassment claim involves and provide a few examples of what these types of claims look like. If you’d like to understand more about these types of sexual harassment claims and how they might apply in your own case, please contact us.

Elements of a Quid Pro Quo Sexual Harassment Claim

As we’ve discussed in prior posts, sexual harassment is a form of gender discrimination that is illegal under federal law as well as many state and local laws. All sexual harassment claims involve some form of unwelcome sexual conduct. From there, sexual harassment claims typically fall into two categories: (1) hostile work environment claims and (2) quid pro quo claims. For more information about hostile work environment claims, check out our posting, “What is a ‘Hostile Work Environment’?”

In quid pro quo claims, a person in a supervisory capacity subjects an employee to unwanted sexual conduct in exchange for some beneficial employment action.

Who Is the Harasser in a Quid Pro Quo Claim?

The harasser in a quid pro quo claim typically must have some supervisory authority over the victim. Because the basis of a quid pro quo claim is that an employee is given some employment benefit in return for submitting to sexual conduct, the harasser must be someone who is in a position to provide that benefit to the employee. That’s not to say that sexual harassment by co-workers, contractors or customers can’t also create a legal claim, but those situations more often fall within the hostile work environment theory of sexual harassment.

What Type of Conduct is Involved in a Quid Pro Quo Claim?

The harasser in a quid pro quo sexual harassment claim must subject the victim to unwanted sexual conduct. The key pieces to this element are that the conduct must have been of a sexual nature and must have been unwanted by the victim. The conduct can be verbal or physical, with a supervisor subjecting the employee to anything from offensive jokes to physical groping and sexual acts in return for some beneficial employment action.

Whether the conduct was unwanted is determined by the facts around the harassment, and specifically courts will look at the victim’s own conduct during the time of the harassment. Even if the victim ultimately participated in the act, it can still be considered unwanted depending on the employee’s other actions surrounding the event, including whether the employee objected to the conduct either directly to the harasser or otherwise through their employer.

What Types of Employment Actions Are Typically Taken?

As part of a quid pro quo sexual harassment claim, the supervisor must have conditioned a job benefit or made an employment decision based on the victim’s submission to or rejection of the unwanted sexual conduct. Examples of the types of employment actions typically involved in a quid pro quo claim include hiring, firing, promotions, demotions, and decisions about compensation. The supervisor does not have to explicitly offer the employment benefit at the time of the harassing conduct, so long as the facts show that an employee’s acceptance or rejection of the sexual conduct was later used as part of the employment decision.

Examples of Quid Pro Quo Sexual Harassment

Quid pro quo claims can arise any time, starting with hiring decisions and ending with termination. For example, a job candidate could come in for an interview with the head of the department in which she would be working, and during the interview, the department head proceeds to grope the candidate and ask her “How badly do you want this job?”

Next, take the example of an employee who has been continually subjected by her supervisor to remarks about her body and sexual jokes. The employee tells her supervisor to stop and has reported his actions up the chain. When it comes time for annual performance reviews and promotions, the supervisor gives the employee a bad review and passes her over for promotion because she did not “play along” with him.

Another example could be an employee on a business trip with his supervisor. While staying at the same hotel, the supervisor comes to his room to talk about a presentation they are preparing to give but quickly starts making sexual advances on the employee. The employee steps away from his boss and asks her to leave his room. The supervisor responds, “Come on. I’d hate to see you lose your job.”

The employees in each of these examples could have a quid pro quo sexual harassment claim against their employer, though the incidents happened at different times in the employment process, in different places, and with differing degrees of explicitness on the part of the supervisor.

Contact an Attorney

If you suspect you’ve been the victim of quid pro quo sexual harassment, we encourage you to contact an attorney immediately. Quid pro quo cases often are not as clear as the examples above, and it can take an experienced sexual harassment attorney to help you understand the strength of your claims and your legal options. At Eisenberg & Baum, our attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Singer/songwriter Kesha has been in a fight for the last couple of years trying to free herself of her recording contract with Sony Music because of an alleged sexually abusive relationship with her longtime producer, Lukasz Gottwald (aka Dr. Luke). The fight has been taking place in the legal system as well as in public, where hundreds of thousands of supporters have joined the #FreeKesha movement on Twitter and through online petitions, urging Sony to end its contract with the singer to allow her to move on and begin recording music again. Despite the outpouring of support, Kesha’s legal case has suffered a series of setbacks recently with a New York Supreme Court judge denying her the ability to get out of her recording contract and dismissing her claims against Dr. Luke and Sony in New York. Kesha’s legal options are not spent at this point, though. She still has a pending case in California that could now go forward and she could appeal the New York Supreme Court’s dismissal.

Regardless of the eventual outcome of her high profile case, Kesha’s claims can be relatable for many women in the workplace. In her lawsuit against Sony and Dr. Luke, she alleged a history of sexual assault and intimidation by her producer that has left her unable to work with him or her label any more. This environment allegedly left Kesha scared for herself and her career and thus reluctant to report the abuse to anyone. Though the New York court may not have found in Kesha’s favor, her allegations shed light on a broader set of questions for victims of sexual harassment in the workplace. We’ll discuss the options employees have to stop sexual harassment at work and ultimately get out of a poisonous employment relationship if necessary.

Report Sexual Harassment

Kesha alleges the incidents of sexual assault and harassment by her producer started ten years ago, though she did not file her original lawsuit until 2014. A victim’s reluctance to step forward with their claim is certainly understandable. The harasser can be intimidating both mentally and physically and the employee could have legitimate concerns about retaliation by their employer up to and including termination. However, delaying reporting harassment can have a significant impact on your ability to not only stop the harassment but recover any damages you may have suffered. In general, the closer to the actual harassment your claim is, the fresher the events will be in your mind and the minds of any witnesses. Also, if you choose to pursue a legal claim for sexual harassment, your claim will be subject to statutes of limitations, or deadlines, that you might miss if you wait too long to speak up. One of the reasons cited by the New York court for dismissing Kesha’s claims was the statute of limitations.

Many employers have a process for employees to report sexual harassment, which we encourage employees to follow. A responsible employer will take a sexual harassment claim seriously and investigate it without bias and with the intent of stopping any illegal behavior as quickly as possible. Where it finds sexual harassment occurred, the employer should also take all necessary steps to repair the damage done to the victim and ensure the harassment does not continue, including terminating the harasser where warranted.

Understand Your Legal Options

If your employer fails to adequately address your sexual harassment claim, you’re going to need legal help. We suggest you reach out to a lawyer as soon as possible, even if your employer is investigating your claim, to ensure that you know about all of your legal options and that you are fully protected.

When an employer fails to address a victim’s sexual harassment claims, the victim can feel trapped. Know, however that an experienced sexual harassment attorney can help you get out of a harassing work environment and recover damages you’ve suffered, even when your employer has failed to help. Kesha filed a lawsuit not only against her alleged abuser but also against her record label seeking to end her recording contract early because of the alleged sexual abuse she suffered. Though Kesha’s relationship with Sony Music is not an employment relationship, her legal claim does provide an example of what an employee in a similar situation might seek in a lawsuit if their employer has not addressed their sexual harassment claim.

Victims of sexual harassment at work can seek injunctive relief from courts as part of the remedy for the discrimination they suffered. The injunctive relief could include orders as broad as prohibiting an employer from engaging in further sexual harassment. Also, most employees are considered “at will” employees who can resign for any reason or no reason at all, some employees are subject to an employment contract that dictates the terms under which they can resign from their job. If you do happen to be working under such a contract and are a victim of sexual harassment, you could seek a court order allowing you to terminate the contract early. This option may not be available in every instance, but an experienced lawyer can help explain your remedies and pursue them for you where it makes sense. To learn more about a discrimination victim’s legal remedies, you can read our prior blog post entitled “What Are My Remedies if I Sue for Discrimination at My Job?”

Contact Us

If you’ve been the victim of sexual abuse or harassment at work and would like to talk with someone about your claims and the remedies available to you, please contact Eisenberg & Baum. We can help you determine the best approach for your claim and help you understand how you can put an end to the harassment while limiting any damage to your career. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also seek to become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.