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Sexual harassment and sex discrimination Answers
Sexual harassment is a form of sex discrimination that violates
Title VII of the Civil Rights Act of 1964. Title VII applies to
employers with 15 or more employees, including state and local
governments. It also applies to employment agencies and to labor
organizations, as well as to the federal government.
Unwelcome sexual advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature constitute sexual
harassment when this conduct explicitly or implicitly affects an
individual's employment, unreasonably interferes with an
individual's work performance, or creates an intimidating,
hostile, or offensive work environment.
Here are some Frequently Asked Questions:
What is sexual harassment? Sexual harassment is defined as
"unwelcome sexual advances or conduct." Sexual harassment
includes quid pro quo harassment or a hostile or offensive work
environment. Sexual harassment is any kind of sexual conduct
that is unwelcome and/or inappropriate for the work place.
Sexual harassment can take many forms: verbal harassment, e.g.
sexual or dirty jokes, visual harassment, e.g. drawings, emails,
etc., physical harassment, and sexual favors, e.g. sexual
advances, confrontation with sexual demands (quid pr quo sexual
harassment). In the work place, sexual harassment can come from
the owner, supervisors, managers, and co-workers. Sexual
harassment does not only occur in the work place; it can occur
off-site at office functions and parties.
Who can be held responsible if I am the victim of sexual
harassment at work? Both the employer and employees are liable
for sexual harassment.
What is quid pro quo sexual harassment? Quid pro quo sexual
harassment takes place when a supervisor or someone with
authority over your job demands sexual favors from you in
exchange for a promotion, raise or some other benefit, including
keeping your job. The demand for sexual favors can be explicit,
e.g. "If you have sex with me, I will promote you," or it can be
implied from unwelcome physical contact such as touching or
fondling.
What must I prove to prevail in a cause of action for quid pro
quo sexual harassment? You must show that a supervisor, or
someone with authority over your job, explicitly or implicitly
conditioned a job, retention of your job, a job benefit (raise,
business trip, or some other benefit), on your acceptance of
sexual conduct. You must demonstrate that the harasser is
someone with authority who can affect conditions of your
employment. You also have to prove that the sexual conduct was
unwelcome.
How can I prove that the sexual conduct was unwelcome? The
sexual conduct must be unwelcome. You may show that the conduct
was unwelcome by showing that you: explicitly rejected his/her
sexual advances; you suffered emotional distress; your job
performance deteriorated; you avoided the harasser; you told
friends and/or family of the harassment; and you told a company
representative of the harassment. Each case is different and
your case may or may not include some of these examples.
What are my remedies in a quid pro quo sexual harassment case?
The law provides that you may recover damages from your employer
once you have proven that you were deprived of a job benefit, or
suffered an adverse employment action, e.g. failure to promote,
termination of employment, because you refused to accept your
supervisor's sexual demands.
What To Do If I Think I am the Victim of Sexual Harassment? Keep
a record of the events surrounding the sexual harassment,
include the date, time, place, and who was present. Your notes
may become very important in litigating the case, but bear in
mind that these notes may be required to be turned over to the
employer during the discovery phase of litigation. Check the
company's employee handbook, if one exists, to determine if the
company has a procedure for handling sexual harassment
complaints. If the company has a procedure for filing a sexual
harassment complaint you must comply with it. If you do not
complain to the employer, the employer can successfully defend
itself from liability by arguing that it was not aware of the
problem, and therefore was unable to remedy the problem.
However, if the problem is not remedied, you may wish to speak
to an attorney for advice on how to file a formal complaint with
the appropriate federal or state or city agency. You may still
want to speak with an attorney before you
file the complaint
with the company to ensure that it is communicated appropriately.
Once I inform my employer about the sexual harassment, what must
my employer do? Once the employer knows or should know about the
harassment, it has a duty to take immediate and appropriate
corrective action to end the harassment. The employer's
response must be reasonably calculated to end the harassment and
if earlier discipline did not end the harassment, more severe
discipline is required.
Is my employer still responsible if the harasser is a co-worker?
If the demand for sexual favors is made by a co-worker with no
power to affect your employment opportunities, you cannot claim
quid pro quo harassment. However, you may claim that the
co-workers actions created a hostile work environment, and an
employer may be held liable for the conduct of the employee if
the employer knew or should have known of the employee's conduct
and failed to take prompt remedial action to stop the harassment.
What is "hostile work environment" sexual harassment? As an
employee, you have a right to work in an environment that is
free of discrimination, intimidation, insult and ridicule. You
have a potential claim for hostile work environment if the
sexual harassment unreasonably interferes with your work
performance or creates an offensive or intimidating work
environment. In order to have a claim for hostile work
environment, you must be able to prove that there was more than
a single incident of harassment. You also have to show, as in
quid pro quo sexual harassment, that the sexual conduct was
unwelcome.
What are examples of a hostile or offensive work environment?
Sexually-charged jokes or pranks, being grabbed or whistled at,
sexual advances, requests for sexual favors or other verbal,
visual, or physical conduct of a sexual nature can create a
hostile work environment and can qualify as sexual harassment.
Conduct that makes the workplace sexually charged does not need
to be directly aimed at you. For example, being subject to
offensive company-wide emails may create a hostile or offensive
work environment.
What must I show in order to recover damages for a hostile work
environment? You must show that the unwelcome sexual conduct was
so severe and pervasive that it "altered your conditions of
employment by creating a psychologically abusive work
environment." The employer may be held liable if he/she knew or
should have known of the harassment and failed to take prompt
remedial steps to stop the harassment.
How can I prove that the harassing conduct was severe or
pervasive enough to alter the working conditions and create an
abusive environment? You must be able to meet both an objective
and a subjective standard. The objective standard is met if a
Court determines that a "reasonable person in your position"
would have considered the conduct severe or pervasive. Under
the subjective standard, you must have actually found the
conduct sufficiently severe or pervasive to interfere with your
work environment. In other words, a Court looks at what your
reaction to the conduct was, and whether your reaction was
reasonable, according how a "reasonable person in your position"
would have reacted.
What types of damages can I recover if I am successful in
demonstrating sexual harassment? A Court may order the company
to: stop the harassment; pay lost wages and other job-related
losses (e.g. promotions, or favorable work status you lost
because of the sexual harassment); pay compensation for
physical, mental and emotional injuries; pay punitive damages;
pay your attorneys' fees and expenses associated with litigating
your case.
Not all employment disputes require a lawsuit, and sometimes
negotiation is the best course of action. I have considerable
experience negotiating with employers who have as few as 4
employees to employers who have as many as 100,000 employees.
If you work in the State of New York, call toll-free
866-424-2644 now for a no-cost consultation to allow me to begin
evaluating your case.
+++++++++++++++++++++++++++++ Brendan Chao EMPLOYEE RIGHTS LAW
Attorney & Counselor at Law http://www.bchaolaw.com "I have
extensive experience in the area of employment law and sexual
harassment!"
About the author:
Mr. Chao began his civil litigation career with the law firm of
Wilson, Elser, Moskowitz, Edelman & Dicker where he gained
extensive experience
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