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Sexual harassment is by no means confined to the workplace. Harassment by coworkers can occur off premises, at social functions or in the home for example. Not all interaction between workers happens within the confines of the office building, and as a result not all harassment cases begin with an on-site incident. Sexual harassment that occurs beyond the workplace is equally frowned upon and legally actionable. Location of an incident does not preclude the victim from (1) informing his or her employer about the harassment; and (2) taking the necessary steps to punish the accountable party(s). Harassment by coworkers, supervisors and others in the workplace should not be tolerated, no matter where it occurred. If you were sexually harassed outside of the workplace, you can still take action against the person who harassed you.
Where can sexual harassment take place?
The law does not place geographic boundaries on sexual harassment claims. Courts have examined activities, behavior and incidents outside of the office environment and still found that “workplace” sexual assault occurred even though it did not unfold in the traditional workplace environment. If there is an employment relationship between the parties, a claim can be filed if the incident is sufficiently severe or repetitive, or contributes to a hostile work environment. Therefore, business trips, dinners, parties and other functions of the like can still be host to incidents of sexual harassment.
A recent federal district court case ruled in favor of a woman who filed a claim after (1) her manager sexually harassed her at a coworker’s funeral; and (2) her employer failed to reprimand the manager. In this case, the court extended the “work environment” designation to the funeral, because her attendance was the result of her employment relationship.
Does the Harasser Have to Be “On The Clock?”
The person who commits harassment can still be found liable for sexual harassment even if he or she was not necessarily “on the clock,” but on personal time. It is not required for the harasser to be in the process of rendering the duties of the job at the time the harassment takes place in order for it to substantiate a claim. When the work day concludes and every one is “off the clock,” so long as an employment relationship continues to exist, gender-based harassment is prohibited by law.
For example, a supervisor and worker may be engaging in conversation in the parking lot after clocking out. If the supervisor makes a lewd or sexual request toward the coworker in the course of conversation, this could still amount to workplace sexual harassment even though both parties were off the clock and engaging of their own accord. It is not a defense to a sexual harassment claim that the work day had ended. Such incidents can still be reported to the Equal Employment Opportunity Commission (EEOC).
Harassment via Texting, Email, and Other Electronic Means
Original sexual harassment laws predate many of the newfound means of communication. A great deal of interaction between coworkers now unfolds in the digital sphere, over email, text message, social media, skype and more. With the advent of telecommuting, employers increasingly rely on digital communication methods to engage with their employees. Even when the law fails to specifically address or keep pace with these new forms of communication, through which sexual harassment reasonably may occur, courts have still been able to apply the principles of sexual harassment law or policy to cases of “digital” harassment.
Transmitting unwanted, uninvited sexually explicit messages or content to a coworker over a digital medium can be reported to the Equal Employment Opportunity Commission, the federal agency charged with handling sexual harassment and assault claims. This includes sexually explicit texts or emails, inappropriate photos, links, or videos.
In 2010, the EEOC brought a claim against an electronics company after a manager sent sexually explicit texts to his coworker and invited her to his home. The woman reported the incident to her immediate supervisor who in turn reported it to the company. The supervisor was subsequently fired. After the EEOC investigation, the company paid damages to both the employee and her supervisor.
Company Policy Considerations
When it comes to sexual harassment that takes place outside the confines of work, different companies may have differences in policy as to how the incident should be handled. Generally, company policy will account for the fact that outside-work harassment could translate to discomfort in the work environment, even if harassment does not occur on the grounds of the workplace. Some company policies may designate an employee as a representative of the company for the duration of employment, therefore, respectful behavior or the lack thereof may reflect poorly on the company, even if the employee is not on the clock or on the premises.
For example, if the CEO of a bank is found sexually harassing an intern who he invited to his own home, the event would still reflect poorly on the company because the CEO is in top level management of the bank and effectively representing it to the public.
Many company policies specifically state that harassment, even when off-site, is prohibited. The incident may be grounds to terminate the employment of the harassing individual, or otherwise reprimand him or her for off-site behavior toward a fellow employee.
Sexual Harassment in Other Contexts or Professional Relationships
An employment relationship is not the only context in which sexual harassment is prohibited. If a business or academic relationship exists between two parties, sexual harassment may still be legally actionable, although the EEOC may not handle the case. For example, sexual harassment by one’s doctor, teacher or lawyer is equally inappropriate and the offending individual may be reported for misconduct. Furthermore, if a patient, student or client sexually harasses a working professional severely or repetitively and the professional’s employer is made aware but does not intervene in some way, this could constitute a hostile work environment.
Where sexual harassment in an academic setting is concerned, it has been argued that mutual consent is impossible because of the inherent power dynamic between students and teachers. Sexual harassment in education is still considered a form of discrimination, and can be acted upon whether the harasser is a teacher, student or other person engaged in a business or academic relationship with the school. In at least one case, a teacher who was being sexually harassed by her student alleged a hostile work environment.
In a medical setting, doctors have sometimes been found exploiting the trust given in a patient-provider relationship, sexually harassing or assaulting their own patients. It remains difficult to establish the scope of the problem, because sexual improprieties toward patients in a medical setting are generally shrouded in secrecy. Patients may feel a doctor behaved inappropriately but be reluctant to come forward. Both criminal and civil suits have been filed against healthcare providers who violate the trust placed in them by sexually harassing or assaulting patients. Not every incident will rise to the level of a criminal case or civil claim, but if someone believes they have a claim, they are advised to seek legal help from an skilled sexual assault attorney.
When to Contact an Attorney for Sexual Harassment?
If you have been sexually harassed by someone at your place of employment, or by a professor, teacher, doctor, or other similar person, then you should contact a sexual harassment attorney immediately. Not all claims are actionable, but speaking with an experienced attorney will help you decide if your claim is actionable, and — regardless if actionable or not — what you should do to address it. Contact trial attorneys Gilman and Bedigian today for a free consultation to discuss your case.