One of the most publicized types of employment discrimination in the news today is sexual harassment. There are two types of sexual harassment: Quid Pro Quo and Hostile Working Environment.
Quid Pro Quo
Quid Pro Quo occurs when a person is subjected to sexual advances and their refusal of those sexual advances results in negative consequences for them. Or if a person is going along with the sexual advances and they want to stop, but if they do stop something bad will happen to them this also is Quid Pro Quo. A common example of Quid Pro Quo is when a supervisor says to the employee you must sleep with me or you will get fired. Or the supervisor says if you don’t continue sleeping with me you will get fired. Both of these situations constitute Quid Pro Quo sexual harassment.
Sexual advances don’t just have to be sexual intercourse. Sexual advances can be unwanted sexual solicitations, sexual horseplay, and/or sexually suggestive contact or conduct. And sexual advances do not have to be sexual in nature. The advances can satisfy the law’s requirement if the person committing sexual harassment performs the advances because of the employee’s sex. That is, if a supervisor only does something because the employee is a particular sex, that would constitute sexual harassment (or sex discrimination) under the law.
Another important part of sexual harassment is that the sexual advances must be unwelcome or unwanted. If the employee consents willingly to the advances then there is no sexual harassment. But remember this, if a person goes along with the advances to prevent something bad from happening to them this is not considered consensual, it is considered sexual harassment.
Hostile Working Environment
The second type of sexual harassment is Hostile Working Environment. A claim for Hostile Working Environment occurs when an employee is subject to sexual conduct or acts, which was unwelcome, and the conduct was severe enough to interfere with the employee’s work or severe enough to create an offensive working environment for the employee.
Hostile Working Environment differs from Quid Pro Quo in that in a Hostile Working Environment claim an employee is subject to the actions of another person rather than being provided with a choice. For example, if a supervisor came up and told an employee to sleep with them or they would lose their job this would be Quid Pro Quo. If the same supervisor just came up and fondled the employee this would be Hostile Working Environment. If the supervisor did both, then the employee could sue for both Quid Pro Quo and Hostile Working Environment.
Sexual conduct under a Hostile Working Environment claim can be defined as a lot of things. Touching, sexual comments, gestures are all considered sexual conduct under the law. But, other actions not sexual in nature can constitute sexual harassment as well. For example, constantly asking an employee out on a date can constitute harassment. Following an employee around and invading his or her personal space can also constitute harassment. And if someone does something which is not sexual in nature but they do it because of the sex of the employee this can constitute sexual harassment (or sex discrimination). Just like Quid Pro Quo the sexual conduct must be unwelcome.
The key part of a Hostile Working Environment claim is usually whether the conduct was severe enough to interfere with the employee’s work or severe enough to create an offensive environment. There are a lot of cases (and a lot of debate over) what defines this area. Just because the employee didn’t like it does not make it illegal. There are several factors taken into consideration when considering whether the conduct was severe:
- how often it occurred;
- how bad it was;
- whether the conduct involved touching;
- who committed the conduct;
- was more than one person committing the conduct; and
- how did the conduct interfere with the employee’s work.
Because of the discrepancy of the courts to fully define what constitutes severe conduct you should see an attorney to explain your rights.
Following are some commonly asked questions about Sexual Harassment:
Can a Woman Sexually Harass a Man?
Yes. It makes no difference under the law whether a man harasses a woman or whether a woman harasses a man. Both are illegal.
Can a Man Sexually Harass a Man?
Or a Woman harass a woman?
Yes. The United State Supreme Court has said that under the law it is illegal for a man to harass a man or for a woman to harass a woman. The same laws apply.
Who do I sue the person who harassed me or the company we work for?
You cannot sue the individual person who harassed you. You must sue the company. Of course if the person who harassed you touched you, you might be able to sue that person for assault and battery (a tort action). But in sexual harassment suits you cannot sue individuals.
What can I get if I win a Sexual Harassment case?
If you win a Sexual Harassment case you could be awarded money for wages, consequential damages (for the act of being discriminated against) and punitive damages (for punishment of the company) capped at a maximum of $300,000 or lower depending on how many employees work for the company, and attorney fees. There are no guarantees. You could recover nothing.
If I think I have been Sexually Harassed what do I do?
If you think you have been sexually harassed see an attorney as soon as possible. You only have a limited amount of time to file a claim (usually only 180 days from the time of the harassment).