Sexual Harassment – Are You a Victim? Beyond #MeToo Part 1

Larry Morse

Sexual harassment is a particularly hurtful form of sex or gender discrimination, but what should you do about it and what changes in the law do we need.? It violates the person harassed, usually but not always a woman, often in the most intimate way, and may do lasting emotional harm, including to other relationships. In this  first article of two, we deal with what the legal test and issues are with proving the two kinds of sexual harassment. Obviously some forms of “harassment” may reach the level of criminal assault and others may be annoying but not illegal. Our second article on this subject will deal with 1) who is liable, the supervisor, the company and/or a coworker and third parties in and outside the workplace; 2) how to prove employer and individual fault – liability; 3) what are the kinds of money damages for sexual harassment and how are they determined, 4) the role of confidential settlement agreements in avoiding long – drawn out court battles. Confidential Settlement and Severance Agreements help the individual’s case to be resolved, but, as we have seen, may not deter serial harassers or companies who put up with them. While this article focuses on the rights of employees – victims, employers and managers will also benefit from review of the following.

Recent news stories about prominent figures who are serial sex harassers have drawn attention to the prevalence of sexual harassment in the workplace. Many women, coming forward as a result, movingly described how vulnerable, victimized, fearful and humiliated they felt when confronted with sexual harassment from powerful executives.  Most often the harasser is a coworker or a direct supervisor. Many feel an excruciating dilemma: they need to go along until it became unbearable and not complain to save their careers and finances or speak out and face distressing uncertainty about their future. 50% of women report some kind of work place harassment. For me, as an employment attorney, the above is not surprising.  The scope of the present flood of claims shocks most of us.

 

Strict Deadlines To File – 180 or 300 days.  Many understandably wait to consult an attorney and decide to seek advice. The sooner a victim take steps to act, the more empowered he or she will feel, the sooner harassment will end, and the sooner the collection of evidence under the guidance of an attorney will begin. In many states, like Massachusetts, with commissions against discrimination or the like, the filing deadline for sexual harassment complaints as with other discrimination charges is within 300 days of the last event; but in states like Texas, complaints must be filed with the Texas Workforce Commission within 180 days and with the Federal Equal Employment Opportunity Commission. Checking with an experienced employment attorney early on to determine the facts is an important early step. This may include determining whether repeated harassing conduct may fall into the continuing violation doctrine by which earlier events are linked to  a final event and may come within the required time frame. Federal Employees must file within 45 days.

What does a sexually harassed person need to know and do after facing sexual harassment to get relief and justice (Justice in our system means money damages)? The two types of sexual harassment are: 1) “quid pro quo” harassment – “I will do this for you if you will provide sexual favors…” and 2) “hostile work environment harassment” which may occur independently or concurrently with quid pro quo harassment. The victim needs supportive help with complicated employment laws; liability depends on the facts of each case. Both women and men, whether straight or LGBT can be harassed by opposite sex or same-sex harassers in this state. While men are most often the “perpetrator,” the 1994 movie Disclosure, showed dramatically how sexual harassment is often more about power than sex as played by Demi Moore as Production Manager, Meredith Johnson victimizing Michael Douglas as Tom Sanders. Reviewer Roger Ebert thought it missed the mark in several ways – implausibly overdoing the erotic thriller aspect, but it contained many truths. The character Tom Sanders faced humiliation and fear, including loss of job and family. In one of my cases, a supervisor was aware that an employee, who happened to be a heterosexual family man, was being harassed with homophobic writings and acts by coworkers. The supervisor did nothing – did not to report the conduct. In fact, the company decided to transfer the harassed employee rather transfer the harassers. These were two big mistakes – as you will see in the upcoming second article about company liability for supervisors’ and other employees’ bad acts and procedural standards of proof.

When faced with harassment, I recommend the following, depending on the immediate urgency to act, using step one first, but if there is time, take step two:

 

  1. The victim should demand that her harasser stop, document what happened, and obtain a copy of the Employer’s Handbook, looking particularly for the part about kinds of discrimination and what are the reporting requirements often to a HELP line – before you report the harassment. Get the whole printed version of the handbook or, if on-line, at least print those pages out. Rarely do companies provide handbooks when requested as part of formal request for an employee’s personnel record. While it is to be confidential, it is possible that the fact of your complaint will come out – confidential is on a “need to know basis.”  The victim should tell the harasser directly that the conduct is unwelcome and must stop unless reporting seems less daunting. The victim should use any employer complaint reporting mechanism or grievance system available.
  2. Because reporting is creating a record and the law is complex, those harassed should consult an experienced employment discrimination attorney to help guide her or him, about what to report for a complete record that meets legal requirements. The sooner the better. For our office, before a consultation, we send out a discrimination questionnaire to help guide those discriminated about the information and documents that she/he needs for my help and review.
  3. Most employers will conduct a confidential investigation, as is required, usually of varying quality and effort, and, sometimes to protect the accused, the higher up in the company they are. While supposedly strictly confidential, in some instances, those with access based on need to know, disclose facts that should be private. If investigation shows sexual harassment, the good companies will discipline the harasser, but the harassed may never know at that stage. One needs to cooperate, but best done with legal guidance.
  4.  If the case seems strong after the attorney’s review, the next step is to prepare a “demand letter” or what I call a ‘settlement letter,” spelling out the facts of the case and how they fit into the legal proof of harassment. The demand is for a settlement of claims for monetary damages to be discussed in Sexual Harassment Part 2.

Both Massachusetts and federal law defines “quid pro quo sexual harassment” as: “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment.” “Hostile work environment sexual harassment” consists of “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive (pervasive) work environment.

To show “quid pro quo sexual harassment,” the employee must be able to prove one of two scenarios.

  1. That the harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;
  2. The sexual conduct was unwelcome;
  3. He or she rejected such advances, requests or conduct; and
  4. The terms or conditions of her or his employment were then adversely affected, commonly known as “an adverse employment action.”

OR,

  1. That the harasser made sexual advances or sexual requests, or otherwise engaged in conduct of a sexual nature;
  2. The sexual conduct was unwelcome;
  3. She submitted to such advances, requests or conduct; and
  4. When he or she submitted to the unwelcome sexual conduct, he or she did so in reasonable fear of adverse employment actions.

Notice the differences in the above list of elements in # 3 and 4, but they can change over time. In an unusual case, I obtained a good settlement for a VP of a company, who had consented to an affair with the CEO, apparently welcome, but later requested that it end –  the attention became unwelcome – she was terminated.

In a hostile work environment case, the complainant must prove:

  1. She was subjected to conduct of a sexual nature;
  2. The conduct of a sexual nature was unwelcome;
  3. The conduct of a sexual nature had the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment; and
  4. The conduct unreasonably interfered with complainant’s work performance or altered the terms and conditions of the complainant’s employment.
Often complaints can lead to unlawful and sometimes obvious and sometimes subtle retaliation, another basis for an employment claim and often simpler of proof.  We will write separately about retaliation but it most often comes as a result of reporting unlawful discrimination. Examples of retaliation include transfers or termination or other “negative employment actions…” Retaliation claims may be winning cases if there are problems of proof with the underlying discrimination case.    
 
What Does Unwelcome Sexual Harassment Mean and When Are Sexual Words or Conduct not Harassment? As stated above, acts that create a hostile work environment include: “inappropriate touching; sexual epithets, jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering [some included staring at a woman’s cleavage, etc.], whistling, or sexual gestures. The cases show all kinds of offensive sexualized conduct. Harassing conduct need not relate to or be motivated by sexual desire in order to constitute sexual harassment. We have seen where power and gender bias play a big role. A single or few instances of what one may consider “sexual harassment” may not be legally considered sexual harassment. If an employee, later a complainant, commences conduct of a sexual nature or is a willing participant in a sexually charged environment, she or he may not be the victim of sexual harassment, but it can get worse with time and people change as harassment continues and “no means no.” When one only “puts up” with harassing behavior to avoid being targeted even more, to try to deal with a hostile environment, or because participating appears to be a condition of employment, the harassed person did not welcome the conduct.


The Impact of a Hostile Work Environment – Two Tests. 

For proof of a hostile work environment, the conduct must be “hostile, intimidating, humiliating or offensive both from an objective and a subjective perspective.”One is not a victim who does not subjectively feel that the behavior is hostile, intimidating, humiliating or offensive, even if co-workers would consider it so. Some people may tolerate, for a while, some kinds of harassing conduct based on fear, particularly if from a supervisor. It often gets worse. In addition, an employee who considers subjectively the behavior to be hostile, intimidating…, when it is not objectively so, is not a victim of a hostile work environment under the law. Consequently, if a male employee receives requests for sexual favors, the question becomes whether a reasonable person in his position would consider the conduct offensive and whether he actually found the conduct offensive. The issue is always whether the conduct is severe or pervasive enough. Asking someone out on a date may not be harassment; it all depends on the context, frequency, severity and pervasiveness of any suggestive sexual nature. Other instances of sexual harassment towards others in the workplace may also be relevant proof as to the assessment of the conduct’s pervasiveness and hostility.  Maintaining friendly relations with co-workers who may be witnesses helps; their helping is also protected against retaliation under the law.  Keep in touch after one leaves is good for the same reason.
In some circumstances, the harassed employee may establish a hostile environment based on a single incident, due to its severity, despite the fact that the conduct is not frequent or repetitive. Moreover, purely verbal conduct, without a physical aspect, may be severe or pervasive enough to create a hostile work environment. However, a few isolated remarks over a period of time are not considered pervasive.