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What is Sexual Harassment in the Workplace?
Sexual harassment is a chronic problem in the workplace and is legally considered a form of sexual discrimination in the United States. Types of harassment include but are not limited to derogatory comments, unwanted sexual advancements, obscene or explicit media contact, unwanted physical contact, threats of sexual assault, requests for sexual favors and more. In general, any unwanted, uninvited behavior of a sexual nature in the workplace constitutes sexual harassment. Sexual assault is a term used to indicate that such advances, requests or threats are acted upon, although sexual assault can still occur without prior sexual harassment. Workplace sexual harassment occurs when a fellow employee or supervisor sexually harasses another employee or other work-related individual.
Sexual harassment is legally actionable and unfortunately, is quite common. The Harvard Business Review conducted a study in which women were polled about their workplace experiences: 75% said they had experienced sexual harassment. A separate meta-analysis showed that only 25% of such claims were filed as a formal complaint either in court or with their employer.
It can occur in a single episode or there may be repeated incidents over a long period of time. Many men and women are afraid to vocalize their discomfort when harassment begins, for fear of losing their job. Although there are a great deal of women who do come forward, it should be noted that sexual harassment is a gender-neutral offense that can befall anyone – man or woman.
U.S. courts break sexual harassment into two categories:
1. Quid pro quo sexual harassment: This type of sexual harassment occurs when “submission to or rejection of sexual conduct is made either explicitly or implicitly a term or condition of a person’s job, pay, or career; or, submission to or rejection of such conduct by a person is used as a basis for career employment decisions affecting that person.” The harasser must have the ability and power to influence professional treatment of the victim.
2. Hostile work environment sexual harassment: This type of sexual harassment constitutes advances, requests or actions of a sexual nature that interfere with an individual’s ability to do his or her job because of a hostile, intimidating or offensive work environment. This can occur between coworkers or a worker and someone else who routinely enters the building, such as a delivery person or janitor. The harasser and victim do not necessarily have to be employed by the same company, so long as they are coming into contact in a work environment.
The Difference Between Sexual Harassment & Sexual Assault: Having an Actionable Claim
Generally speaking, victims are told that harassment must be severe and pervasive in order to constitute a viable complaint. Although upper management of a company, if made aware of a derogatory or sexualized comment, may reprimand the individual, if harassment is not consistent and severe, the victim may be told that their claim is not fully actionable. Sexual assault, on the other hand, which is inappropriate or unconscionable physical contact, can occur only once for the victim to have an actionable claim. A lawyer can help determine whether or not a sexual harassment incident qualifies as an actionable legal claim.
Sexual Harassment Across Industries
Given how pervasive the problem is, sexual harassment has become a hot-button issue. Recently there has been high profile cases of sexual harassment brought forward and made public by the media. The Center for American Progress recently released a chart detailing which industries have the most reported sexual harassment claims. The keyword here is ‘reported,’ because not all victims come forward. Accommodation and food services, retail trade, manufacturing, healthcare, public administration, transportation, finance and educational services were the top industries in number of sexual harassment charges filed in 2015. The entertainment industry has also recently seen a rash of claims of sexual harassment on the part of high-powered and well-known actors and executives. It is also not uncommon for men in the political sphere to see claims of sexual harassment brought against them. High-powered individuals who harass women are more likely to be protected by upper management or an aggressive legal team, in order to shield the person’s reputation from harm.
Many sexual harassment claims, especially the most legitimate and legally actionable claims, often settle outside of court, in the interest of minimizing bad press for the company or the harasser. This, in effect, may not fully address the problem of sexual harassment, rather it puts a “band-aid” on it. Furthermore, the harasser may go on to harass someone else.
How To Report Workplace Sexual Harassment in Maryland, Pennsylvania and Washington D.C.
In the state of Maryland, tangible psychological injury is not necessary to constitute a hostile work environment. The perception of a hostile environment due to sexual harassment is all that is needed for an employee to meet the standard. They would report the incident or nature of the environment to a Fair Practices Officer, Equal Employment Opportunity (EEO) Officer, supervisor or any other management representative, at which point an investigation would ensue. If another employee is found to have committed sexual harassment, disciplinary action will be taken and they may even be dismissed from their job. Regarding the responsibilities of the victim, Maryland holds that they must:
Inform the offending person that his/her conduct is unwelcome and should cease immediately. It is important for the victim to communicate that the conduct is unwelcome, particularly when the alleged harasser may have some reason to believe that the behavior may be welcome. However, a victim of harassment need not confront his/her harasser directly, so long as the victim’s conduct demonstrates that the harasser’s behavior is unwelcome.
At this point, if the harassment does not cease, the harassed individual should then report to a Fair Practices Officer, EEO officer and so on. The reporting employee is guaranteed protection from retaliation from the harasser, including any motion to get the victim demoted or dismissed.
In Pennsylvania, the Pennsylvania Human Relations Act expressly prohibits discrimination on the basis of sex including sexual harassment. The state’s sexual harassment policy holds:
In determining whether alleged conduct constitutes sexual harassment, the Pennsylvania Human Relations Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis.
Above all, Pennsylvania almost entirely holds the employer responsible for the misdeeds of their employees and are tasked with preventing sexual harassment before it begins, stating:
the employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII and the Pennsylvania Human Relations Act, and developing methods to sensitize all concerned. (emphasis added).
In Washington D.C., the Office of Human Rights handles sexual harassment claims. The District of Columbia offers a more detailed definition of sexual harassment, including “sexually degrading language describing an individual or his or her body, clothing, hair, accessories or sexual experiences,” off-color jokes of a sexual nature, innuendos, dissemination of sexually suggestive media, leering or suggestive gestures and sounds including whistles and kissing noises, brushing up against an employee, patting, pinching, hugging and massaging.
Consensual relationships between supervisors and subordinates is discouraged. Such relationships would be factored into an employee’s claim of a hostile work environment. In D.C., it is not only the responsibility of the victim to report sexual harassment, but also the responsibility of any fellow employee who is aware the harassment is going on. Supervisors who receive such complaints are required to move forward with an investigation as to the claim’s validity. The Office of Human Rights (OHR) would conduct such an investigation. A complaint may be filed with an EEO counselor within 180 days of the incident, or may be filed with the Office of Human Rights within one year of the incident. All files are to remain confidential and the accused harasser is innocent until proven guilty. If the claim is substantiated, the OHR will recommend appropriate disciplinary action.
Timeliness is critical in reporting an incident of sexual harassment if there are to be legal consequences for the harasser’s conduct. On the other hand, if a complaint is not filed in a timely manner, it does not preclude the termination of the harasser; the harasser could still be fired from the position even if the victim waits a good deal of time before reporting. This would be up to the discretion of the harasser’s employer, company policy, and the degree to which the victim’s complaint and story is compelling and substantiated.
When An Attorney is Needed in Workplace Sexual Harassment Cases
If the incident meets the legal definitions of workplace sexual harassment in one’s state, and it (1) can be substantiated with evidence; and (2) is objectively offensive and/or resulted in a demotion, pay cut or termination (although this is not necessary), then a victim may be able to take their harasser to court. Gilman & Bedigian can help you determine whether you can bring your sexual harassment claim before a judge. They are ready to take on your case and fight for your cause. Call us today at 800.529.6162 to discuss your case.