Although our society has moved beyond the “boy’s club” work culture of the ’50s and ’60s, sexual harassment in the workplace continues to be a serious problem.
With the recent advent of the #metoo movement, this problem is getting even more attention.
In this regard, the law protects both men and women from sexual harassment. The reality, however, is that the vast majority of victims are women.
In this post we will address several legal issues that arise with this type of workplace misconduct. We will define it and examine the legal remedies available to victims of harassment.
Federal law or Mississippi law.
Let us start with the question of which body of law defines and prohibits sexual harassment in the workplace. Far and away, federal law provides the greatest level of protection to employees.
The primary source of federal protection is Title VII of the Civil Rights Act of 1964. This law prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion.
It should be noted, however, that Title VII does not apply to all employers. It only covers employers who have a certain number of employees. There is a specific formula, but generally speaking, an employer must have 15 or more employees to be subject to Title VII.
With respect to discrimination “on the basis of sex,” when it was first adopted, Title VII was focused preventing employers from discriminating against women in favor of men in matters such as hiring and firing.
Over time, however, federal courts and the Equal Employment Opportunity Commission (“EEOC”) began to recognize sexual harassment against women as a form of discrimination “on the basis of sex.”
It is now firmly established that sexual harassment in the workplace violates Title VII.
Let us touch briefly upon Mississippi law.
In Mississippi, there are no laws that prohibit sexual harassment at work.
Of course, if an employer has 15 or more employees, Title VII can be invoked. But, if an employee works for an employer with less than 15 employees, protection is very limited.
In that situation, about the only route an employee can take is to invoke Mississippi common law on assault and battery. That essentially means the employee would have to show that the harassment took the form of unwanted physical contact.
There may also be a claim under Mississippi law for intentional infliction of emotional distress, but the Mississippi Supreme Court has said such a claim will rarely arise in the employment context.
So, for the remainder of this article, we will focus on federal law.
Under federal law, what constitutes sexual harassment?
Federal courts have recognized that sexual harassment can take many forms. The courts have, however, generally identified two broad categories.
Those two categories are (i) hostile work environment and (ii) quid pro quo. Let us look at each of those.
Hostile work environment
As just mentioned, harassment can take many forms, such as inappropriate advances, lewd comments, off-color jokes, unwanted touching, and other conduct that makes the employee feel uncomfortable, intimidated, or threatened.
The courts have made it clear that a single, isolated instance (unless it is very serious) will not rise to the level of having created a hostile work environment.
Instead, the court will look to determine whether multiple acts of misconduct has created a work environment that would be intimidating, hostile, or offensive to reasonable people.
Quid pro quo
This is a Latin phrase that means “something for something.” It is used in employment law to refer to situations where an employee is put in the position of having to tolerate sexual harassment (or provide sexual favors) as a condition of keeping her job.
This will occur when (i) the harasser is a supervisor or someone else with the power to fire, demote, reprimand or otherwise negatively affect the employee’s job and (ii) the harasser actually takes one of those negative actions.
Is the distinction between the two forms important?
Yes, and this is why.
First, a hostile work environment can be created by the employee’s co-workers and others beneath the employee in the chain-of-command.
On the other hand, quid pro quo claims are based upon misconduct by the employee’s supervisor or others above her in the chain-of-command.
Second, if an employee is the victim of quid pro quo harassment, the employer is usually liable for the violation, even if the employer did not actually know what the supervisor was doing.
With respect to hostile work environment claims, an employer can also be held liable for the misconduct of its other employees. But, in recent years the United State’s Supreme Court has held that the employer can raise a defense by showing:
(1) it exercised reasonable care to prevent and correct sexual harassment in the workplace (usually by having a written policy and a complaint process), and
(2) the employee unreasonably failed to take advantage of the process.
What about harassment coming from customers?
An employer’s liability is not limited to harassment committed by its own employees. If the employer becomes aware that customers are harassing an employee, the employer has a legal duty to take steps to prevent it and protect the employee.
This type of problem happens very often in the restaurant and bar industry. The employee has a right to an harassment-free workplace, regardless of whether the harassment comes from other employees or customers.
What should you do if you are being subjected to such harassment?
First, tell the harasser his conduct is unwelcome. Do not laugh along at jokes that you find offensive just to get along. Do not ignore someone touching you when it is unwelcome.
Second, if the problem persists, and if your employer has an anti-harassment policy, follow it. If the employer does not have such a policy, nevertheless report it to the human resources department or someone with authority over the harasser.
In the meantime, keep records of what is happening and when. Be specific. Include records of any problems you have suffered, such sleeplessness, anxiety, doctor visits, counselor visits, etc.
Finally, if the problem persists, contact the EEOC and file a Charge of Discrimination.
In this regard, it is very important to know that you must first bring your complaint before the EEOC before you can actually file a lawsuit under Title VII. That does not mean, however, that you cannot have a lawyer to assist you before the EEOC.
What is the process before the EEOC?
If you are being harassed, personnel at the EEOC will assist you in filling out the forms necessary to file your Charge. They are very helpful.
Keep these deadlines in mind
1. If you want to pursue a claim, you must file your Charge with the EEOC within 180 days of the misconduct giving rise to your claim.
So, for example, if you were demoted for refusing to put up with a supervisor’s harassment, you would have 180 days from the date of the demotion to file the claim.
Determining the date of misconduct in a hostile work environment claim is, not surprisingly, a little harder. This is because it usually takes place over a period of time.
In these cases, the EEOC says that the Charge should be filed within 180 days of the last incident of harassment (although it will look at all prior acts of harassment in considering the Charge).
A potential pitfall, however, is that the EEOC may not conclude that the last incident of which you complained was actually sexual harassment.
Put another way, if you file your Charge 180 days after a co-worker makes a comment that you disapproved of, the EEOC may conclude that the statement was not actually sexual harassment and that you should have filed your Charge earlier based upon prior incidents.
If you want to file a Charge based upon hostile work environment but are uncertain as to your deadline, it is advisable to consult with a lawyer to make sure your Charge is filed in a timely manner.
What happens next?
The EEOC will work with you and your employer in an effort to resolve the problem and get you compensated.
If the EEOC is unable to resolve the dispute in a manner favorable to you, it will issue a Right-to-Sue letter and mail it to you. You will have 90 days in which to file a lawsuit or your claim will be barred.
What type of damages are recoverable for sexual harassment?
You are entitled to be compensated for all damages you can reasonably prove were caused by the harassment. Some of the more common damages are:
-lost income and benefits
In extreme cases, you may also recover punitive damages.
In addition, if you prevail, the court is allowed to (and almost always does) make your employer pay your attorney’s fees and expenses.
Your employer may not retaliate against you for reporting harassment or filing an EEOC Charge.
You have the right to complain to your employer about harassment. You also have the right to file an EEOC charge if you have been the victim of unlawful sexual harassment.
In either event, your employer may not retaliate against you for doing so. Retaliation can take many forms, such as firing, demotion, reduction of hours worked, less favorable work assignments, and others.
Retaliation is a separate claim from a sexual harassment claim. So, even if you did not prevail on your sexual harassment claim, if your employer retaliated against you for making the claim, you have a whole new claim available to you.
You can read more about sexual harassment at the EEOC’s website.
If you have been the victim of sexual harassment or retaliation, please let us know if we can be of assistance.
Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110