Workplace Harassment
• Sexual Harassment in the Workplace
• Hostile Workplace Environment
• Sexual Harassment Outside the Workplace
• Other Types of Harassment Sexual Harassment in the Workplace
Sexual harassment in the workplace is one of the most complicated areas of employment law. It is also one of the areas that has recently received the most press. Below is a basic guide to sexual harassment in the workplace. Please note that sexual harassment in the workplace often goes hand-in-hand with other illegal acts, like gender discrimination. If you have a problem with sexual harassment in the workplace, you should think about what else might be going on as well. The Guide Below Is for Texas & Federal Law. The principles described here apply to both. However, there are some differences that could make a difference to individual cases.
Two Types of Sexual Harassment in the Workplace
There are two types of sexual harassment in the workplace, "quid-pro-quo" and "hostile environment." The Hostile Environment will be explained in a separate section, although where there's one, there's often the other.
Quid-Pro-Quo Harassment
"Quid-pro-quo" is Latin for "this for that." It is a trade. When the trade is on the basis of sex, it is illegal. This is the when the employer makes sex a prerequisite to getting something in the workplace. For example: "sleep with me and you'll get the job." That's illegal. This type of sexual harassment in the workplace is the "casting couch" cliché. Quid-pro-quo can also include negatives. For example, "sleep with me or you're fired" is also illegal.
Who can sue?
Obviously, the woman who is fired because she wouldn't sleep with the boss can sue. But so can a woman who the boss didn't even want to sleep with. Take for example a situation where the boss asks one of his assistants to sleep with him in exchange for a promotion. She does it and gets the promotion. Under the law, she has a claim, because her agreeing to his sexual demands was a condition of the promotion. She also has a claim if she refused and didn't get the promotion. Now, if she was just having an affair with him because she wanted to, there is no claim. What about the other assistants? Do they have a case because the other assistant got a promotion because she was sleeping with the boss, and they did not? Probably not. In Texas and in most states, there is no sexual harassment in the workplace or discrimination in the workplace claim because a lover got special treatment. However, if the boss made sexual demands which they refused, and that's why they didn't get the promotion or other benefits, they have a claim.
Consent & Offensive Conduct
What about the person who accepts the offer of advancement in exchange for sex. Can she sue? She can certainly sue - she either deserved the promotion or didn't deserve it; she shouldn't have been put in the position of considering whether or not to sell her body to get it. The problem is the idea of "consent." Sexual harassment in the workplace must be unwelcome. If she was happy with the trade-off, she has a difficult case. First, the conduct must be "offensive." If two employees have a good time exchanging sexual jokes, it would not be sexual harassment in the workplace. If one employee kept telling another employee sexual jokes that the second employee found offensive, it would be sexual harassment in the workplace. If two employees dated and engaged in consensual sex, this would not be sexual harassment. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the work place to further the relationship, this would be sexual harassment in the workplace. Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment in the workplace. Sexual harassment in the workplace can be between people of the same sex. Sexual harassment in the workplace can be a woman harassing a man.
Who can sue?
Anyone who is offended by a sexually harassing environment may theoretically sue. However, that employee's offense must be reasonable. An extremely sensitive person might not be able to maintain a claim, because her feelings of having been offended were not reasonable. The reasonableness is evaluated by a standard that is the same as a person in the victim's circumstances. For example, what a reasonable woman might think is a hostile environment is not necessarily the same as what a man might think is a hostile environment. If it's a woman who was harassed, it's the woman's point of view that counts.
Damages In Sexual Harassment In The Workplace Cases
Victims of sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys’ fees. Hostile Workplace Environment This section discusses both sexual harassment in the workplace and racial, national origin or ethnic discrimination in the hostile workplace environment.
Hostile Workplace Environment: Sexual Harassment In The Workplace Uncomfortable Environment
Hostile environment sexual harassment in the workplace is a situation in which the employer, supervisor, or co-worker does or says things that make the victim feel uncomfortable because of his or her sex. Hostile environment sexual harassment in the workplace does not need to include a demand for an exchange of sex for a job benefit. It is the creation of an "uncomfortable environment."
Offensive Conduct
The conduct must be "offensive." If two employees have a good time exchanging sexual jokes, it would not be sexual harassment in the workplace. If one employee kept telling another employee sexual jokes that the second employee found offensive, it "would" be sexual harassment in the workplace. If two employees dated and engaged in consensual sex, this would not be sexual harassment in the workplace. If one of the two then wanted to terminate the relationship, and the other used the unequal relative terms and conditions of employment of the work place to further the relationship, this would be sexual harassment in the workplace. Jokes, pictures, touching, leering, unwanted requests for a date have all been found by courts to be sexual harassment. Sexual harassment in the workplace can be between people of the same sex. Sexual harassment in the workplace can be a woman harassing a man.
Hostile Workplace Environment: Race, National Origin, or Ethnic Discrimination & Harassment
The court's have held that if you are harassed in the work place about your race, ethnicity, or national origin you may have the right to sue your employer. Discrimination and harassment go hand in hand here. Where there is discrimination in the workplace, there is also usually harassment in the workplace.
Severe & Pervasive Harassment & Discrimination
First, the discrimination or harassment in the workplace must be severe and pervasive. An idle comment, even if, offensive is not the basis for a lawsuit. Ongoing use of the "N" word could be severe and pervasive. Having derrogatory words and racial or ethnic slurs written on the bathroom walls could be severe and pervasive. One has to look at it on a case by case basis.
Management Awareness: Next the conduct must be carried on by management or management must know about it and have had an opportunity to stop it and in fact, do not. In other words, management condones the behavoir.
Report The Behavior
If a fellow worker is the one doing the discrimination and harassment, you should follow the company policy and report the conduct to your supervisor and Human Resources. Report it in writing to have proof of the date you reported it, and be sure to be specific about the exact nature of the discrimination or harassment. Saying things like Joe is bothering me or harassing me is not sufficient. Also, saying that Joe called me the "N" word once is insufficient. Don't retaliate back, or you can be fired.
Who Can Sue?
Anyone who is offended by a discriminatory or sexually harassing hostile environment may theoretically sue. However, that employee's offense must be reasonable. An extremely sensitive person might not be able to maintain a claim, if his or her feelings, that have been offended, were not reasonable.
Damages in Discrimination or Sexual Harassment In The Workplace Cases
Victims of discrimination in the workplace or sexual harassment in the workplace can recover for their lost wages, future lost wages, emotional distress, punitive damages, and attorneys fees. The section on Damages discusses this further. Sexual Harassment Outside the Workplace This section is a supplement to the section on sexual harassment in the workplace. For a description of what sexual harassment is, and what forms it comes in, see Harassment in the Workplace. This section describes how sexual harassment can be illegal outside the workplace.
This Section Addresses Texas Law. Who Can Be Sued?
Generally, only employers can be sued for sexual harassment. For example: if a man grabs a woman's breast in a bar, that's not sexual harassment, although it may be assault and battery. However, if a woman's boss grabs her breast (and she doesn't want him to) that's probably sexual harassment. The following people can be sued for sexual harassment, when they have a business, service, or professional relationship with the person they harassed:
• A person's physician, psychotherapist, or dentist
• Attorneys • Marriage, family or child counselors, licensed clinical social workers, and those with a Masters Degree in Social Work (MSW)
• Real estate agents and real estate appraisers • Accountant bankers, trust officer, financial planners and loan officers
• Collection services
• Contractors
• Escrow loan officers
• Executors, trustees, or administrator beneficiaries
• Landlords and property managers
• Teachers
• People who are in a relationship that is substantially similar to any of the above The sexual harassment must occur in the context of the relationship. For example, just because a person is a doctor does not mean he can never legally sexually harass anyone. The law says that he can't sexually harass his patients. Teachers can't sexually harass their students, etc.
What Counts As Harassment?
Sexual harassment by someone in one of the positions listed above is when he or she does the following: • Makes sexual advances • Makes solicitations • Makes sexual requests • Makes demands for sexual compliance This is generally called "quid-pro-quo" harassment. For a more detailed description, see this sub- heading under the section on Sexual Harassment in the Workplace. When Is the Harassment Illegal? Sexual harassment is illegal when there is a business, service, or professional relationship between the harasser and the victim.
Request to Stop
For the harassment to be illegal, the victim must also have made a request that the behavior stop. This means that the first request or advance is never illegal.
Inability to Leave
For the harassment to be illegal, the victim must not be able to easily terminate the relationship without tangible hardship. In other words, if the victim can just leave without any trouble, it's not illegal. This does not mean that the victim has to be physically restrained. For example, if a person is about to undergo surgery, and her doctor harasses her, it would probably be difficult to find another without "tangible hardship." That would be expensive, and if she really needs the operation, maybe deadly! Having to find a new attorney in the middle of a case might also be a tangible hardship. Other Types of Harassment "Harassment," standing alone, is not illegal. The harassment in the workplace must be based on an illegal factor, like those listed above under "discrimination in the workplace." In other words, the employer cannot harass the employee because of his race. But he can harass him because he just doesn't like him. If an employer treats an employee badly because of race, it is racial harassment. If it is because of sex or gender, it is sexual harassment, etc. But there is no law against general "harassment" or bad treatment of an employee.
Connection to Workers' Compensation and Disability
If an employer treats an employee badly enough, that employee may be forced to take a stress leave. This may result in a workers' compensation or disability claim. However, the employee still does not have a right to sueIf you have any questions about workplace harassment, please contact us.
