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What is sexual assault in the workplace?
Distinct from sexual harassment, sexual assault occurs when an individual makes unwelcome and intentional sexual contact with another person by way of intimidation, brute force, threats, abuse of authority or when the victim cannot consent. When this occurs in the context of employment, it is considered workplace sexual assault and is entirely illegal. It can be perpetrated by a coworker, supervisor, job interviewer or a non-employee who enters your workplace frequently (e.g., janitor). In order to qualify as sexual assault, the incident must involve some type of physical contact – although there are exceptions. It is never the victim’s fault, and may occur as an isolated incident or episodically.
Sexual assault is a legally actionable claim and the person who has been assaulted has the right to seek damages in a civil suit, hold the offender liable or pursue criminal charges, if the circumstances of the assault rise to the level of criminality. Examples of sexual assault include:
- coerced sexual activity by use of threat or intimidation
- forced kissing
- forced fondling
- forcible oral or anal intercourse
- abusive, aggravated or wrongful contact between the abuser’s mouth, hands, genitals, etc., with the victim’s body
- grabbing without permission
- sexually or suggestively touching an incapacitated person
- touching a person with an object in a sexual nature
- forcibly showing content such as photo or video of a sexual nature to an unwilling viewer
- any attempts to commit the above acts.
Is there a difference between sexual assault and sexual harassment?
The chief difference between sexual assault and sexual harassment is the degree of unlawful contact the offender makes with the victim. Generally speaking, sexual harassment occurs in the form of sexual advances, requests for sexual favors, vulgar or sexually degrading language, inappropriate gestures, and certain types of inappropriate physical contact that do not rise to the level of sexual assault (e.g., pinching, shoulder rubbing, knee grabbing). This is merely an overview, as sexual harassment can still occur in other forms. Ultimately, sexual harassment does not involve a great deal of physical contact but can still be extremely uncomfortable and threatening to a harassed employee.
The United States Equal Employment Opportunity Commission (EEOC) handles sexual assault and harassment complaints in the workplace. They classify sexual harassment into two different types:
Quid pro quo sexual harassment: Quid pro quo is Latin, meaning “this for that.” It defines sexual harassment in which the harasser implies that the inappropriate conduct is a condition of employment. This type of sexual harassment can only be perpetrated by someone who is in a position of authority and is harassing a subordinate employee. Examples include:
- telling an employee that he or she will get a promotion if a sexual favor is perform; or
- threatening to fire an employee if he or she is not receptive to the superior’s sexual advances.
Even if the employee is not fired or does not lose out on a promotion because of the harassment, the offending supervisor could still be held liable.
Hostile work environment sexual harassment: Anyone in the work environment can be responsible for this type of harassment, regardless of employee standing. It occurs when severe and pervasive harassment creates a demeaning or intimidating working environment in which the employee is not comfortable while rendering regular job duties. Examples of what can contribute to a hostile working environment are:
- inappropriate jokes
- unwelcome physical contact
- repeated, unwanted requests for dates
- displaying offensive pictures.
Ultimately, if an employee is made perpetually uncomfortable due to a fellow employee’s inappropriate or suggestive conduct, this can constitute hostile work environment sexual harassment.
How common is sexual assault / sexual harassment in the workplace?
As of late, women have been coming forward in droves to speak out against the sexual harassment they endured at the hands of an employer or coworker. Because of belated confessions and claims that went entirely unreported, it is difficult to ascertain just how common the problem is, but there is a general idea. One study concluded that 1 in 3 women have experienced sexual harassment or assault in the workplace. The problem of sexual harassment transcends rank, industry, age group and income level; women across the board have stepped forward to speak out about what happened to them.
In a poll by the Wall Street Journal that surveyed 900 respondents, 48% of women claimed to have experienced workplace sexual harassment (this is not to say that men have not experienced it as well.) Forty-one percent of men claimed to have witnessed sexual harassment in the workplace. Sixty-seven percent of respondents answered affirmatively when asked if they believed sexual harassment occurred in almost all work environments. These responses lend some degree of insight into the pervasiveness of sexual harassment and assault in the workplace.
Excluding complaints that were filed with local or state agencies, the EEOC reports that approximately 12,000 complaints are logged annually, since 2010.
What can I do if I was sexually harassed or assaulted at work? How do I report sexual assault at work?
Depending on the severity or frequency of the incident(s), your first course of action may be to directly confront the person harassing you and inform him or her that the behavior is inappropriate, unwelcome, making you uncomfortable and must be stopped. In some cases, the nature of the incident makes direct confrontation an unsuitable method for addressing it. You may need to report to a higher authority.
How is my employer expected to handle a sexual harassment or assault complaint?
You can report details of the incident to your supervisor, upper management or person directly above the harasser. Under federal and state law, your employer must protect you against a hostile working environment when they are made aware of it. If you have been harassed, they are legally obliged to address the situation. They can reprimand the offending employee verbally or in print. According to their discretion, they may demote, fire or reassign the employee.
What do I do if I am unsatisfied with the way my employer handled my sexual harassment complaint? Can I sue for sexual harassment?
If you are unsatisfied with the way your employer handled the claim (or failed to handle it), you may consider speaking to an attorney. Calling a qualified attorney for consultation is the first step toward litigating your sexual harassment/assault claim. It is critical that you retain an experienced, knowledgeable attorney who is familiarly acquainted with the laws in your state to ensure your claim is efficiently and effectively litigated.
Can I report a one-time incident?
It depends entirely on the severity of the incident. The EEOC holds: “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”
Can I report an incident of workplace sexual assault / sexual harassment that happened a long time ago?
There may be a statute of limitations (time limit) for criminal sexual assault charges, which varies state to state. However, in some states, like Maryland, there is no statute of limitations for felony criminal sex crimes. This means that a victim or witness could report sexual assault to law enforcement anytime, even years or decades later.
There may be a separate statute of limitaitons for civil lawsuits. For sexual harassment in the workplace claims, a complaint must generally be filed with the EEOC within 180 days of the incident, although this is extended to the 300 days in some states (including Maryland). If the victim wishes to file a civil suit for sexual assault, most states have a 3-year statute of limitations.
Can I report sexual assault / sexual harassment that I am aware of, even if it did not happen to me?
Yes. Anyone who observes and is affected by the sexual assault or harassment of a fellow employee is encouraged to report it to management or the EEOC. You do not need to be the direct recipient of sexual harassment for it to make your working environment uncomfortable or hostile.
Can I get fired if I report sexual assault?
The EEOC has ensured that retaliation (in the form of demotion, firing, etc) against an employee for reporting a case of sexual assault/harassment is prohibited by law. If you are fired, demoted or lose hours because you reported inappropriate conduct, you could have a strong civil lawsuit on your hands.
Is it difficult to win a sexual assault case?
This completely depends on the circumstances of the case and the caliber of the attorney litigating it. Sometimes the employer or coworker counter sues. Generally speaking, a harassed or assaulted employee has a better chance of winning his or her case if a civil suit is filed in lieu of a criminal suit. In a civil suit, the object is to find the defendant liable for the assault, rather than guilty. There is a lower standard of proof, so the harassed employee needs only to show that there is at least a 51% chance the defendant harassed or assaulted the victim.
If the harassed employee prevails in the suit, he or she will be awarded damages, but the defendant will face no jail time. Furthermore, in a civil suit, the harassed employee has more control: they initiate the case themselves rather than letting the state do so, and they have final say over the settlement terms.
If I was sexually assaulted at my place of work by a non-employee, is this still workplace sexual assault?
Yes. If an employed individual is frequently in your workplace but not employed by your company (e.g., the employee of a partner company who comes in for meetings, a worker in the same office building, a mail person who enters the office on a usual basis) sexually harasses or assaults you, this still constitutes workplace sexual assault. The ability of your employer to address the problem changes somewhat under the circumstances, but the employer is still obliged to intervene in some way if you make the employer aware of it.
If a coworker/supervisor commits sexual assault outside of the workplace, is it still considered sexual assault?
It could be. Sexual harassment and assault are happening outside of the confines of the workplace with increasing frequency. Harassment over social media or in-person while off duty can still be considered workplace sexual harassment. The behavior can be reported to your superiors all the same, and the EEOC if necessary.