“Sexual harassment” is one of those legal phrases that get thrown around quite a bit. But what does it really mean? How do I know if you are being sexually harassed? What steps should I take if I am the victim of sexual harassment? These are questions that I hope to address for the person who is struggling in their job and is ready to act, or at least know more about the law.
A. What is sexual harassment?
Sexual harassment is a form of illegal sex discrimination involving unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct that is based on sex. Sexual harassment is a violation of federal and state law.
B. Are there different types of sexual harassment?
Generally speaking, there are two types of sexual harassment: (1) hostile work environment; and (2) quid pro quo.
Hostile work environment: A hostile work environment created by sexual harassment is harassment that is frequent or severe enough to interfere with your ability to perform your job. The behavior must be directed at you because of your gender (or sex), and can include unwelcome, sexually suggestive or gender-based comments or jokes; unwelcome and repeated requests for dates; offensive gestures; inappropriate touching; or display of pornographic or sexually explicit materials.
Quid pro quo: Harassment that occurs when a supervisor or manager asks for sexual favors from you in return for employment benefits such as a promotion, salary increase, career development opportunities, special projects, or other benefits related to your job.
Both types of sexual harassment are illegal under state and federal law. If you experience either of these types of harassment, you will want to speak with an attorney.
C. But, shouldn’t I just deal with it and hope it goes away?
Washington and federal law make it clear that you should NEVER have to deal with unwanted sexual harassment in the workplace. You should feel comfortable and be able to perform your job without fear or receiving unwanted sexual harassment at your job. If you are being harassed, contact an employment attorney that can help. Don’t wait until you have lost your job to talk with someone who can help you through the situation.
D. Can I sue my employer for sexual harassment? If so, what steps should I take?
Whether or not you have an actionable claim against your employer will largely depend on the evidence you have of the harassment, witnesses that have observed the harassing behavior, and probably most importantly, the action you have taken to address the harassment.
Evidence: Obviously, if you can, you will want to document the behavior with pictures, text messages, emails or other forms of physical or written evidence. Evidence demonstrating that the harassment is occurring in the workplace can be very persuasive to convince a court, a jury, or the company that you have a believable and valid claim. If you have such evidence, make sure to safeguard it and don’t delete or destroy anything before you can talk to an attorney about it.
Witnesses: Sometimes evidence does not exist of the harassing behavior, but other employees of the company may have witnessed the harassment. If you have witnesses to the harassment, make sure that you have the person’s contact information. Later, your attorney can get written statements or interview the witness for helpful information to bolster your case.
Take Action & Report it. One of the biggest mistakes you can make is if you are experiencing sexual harassment is that you either do nothing to respond, or you report something, but not in writing. When supervisors or human resource professionals are asked later about whether they were told about sexual harassment, and the complaint was not in writing, they will almost certainly deny it. Thus, it is extremely important to document your complaints in writing.
Submitting a complaint in writing is important for a few reasons: (1) it can actually solve the problem by addressing the issue instead of ignoring it; (2) it can actually protect your job; and (3) it preserves a written record of your complaint.
Solve the Problem. It may seem strange, but some sexual harassers do not know or realize that what they are doing is wrong or is making you feel uncomfortable. Therefore, if you direct your communication to the person and tell them what they are doing and why it is making you uncomfortable, believe it or not, sometimes they will stop. Further, you can also contact a human resource professional or a supervisor that can prevent future harassment. Just make sure you preserve the communication in writing and keep a copy of that written communication.
Protect Your Job. If you are complaining in writing about sexual harassment, you are engaging in what is called “protected activity” meaning that you cannot legally be fired for reporting sexual harassment. Therefore, if something happens to your job, i.e. you are fired, the argument can easily be made that you are experiencing retaliation for reporting your concerns of illegal behavior in the workplace. As such, reporting concerns of what you reasonably believe is sexual harassment can actually protect your job and make your employer think twice about taking adverse action against you, such as termination. Even though you may be afraid to speak up or do anything, by reporting sexual harassment, it is often the case that you are making it harder for the employer to terminate you.
Preserving the Record. Often when I meet with potential clients, I will ask them if they complained about sexual harassment to anyone. Often, they will say “yes, but just verbally.” This can be fatal to a case. One of the ways to hold a company liable for sexual harassment is to show that when you complained about sexual harassment, that they did not take steps reasonably calculated to end the sexual harassment. However, if you cannot prove that you actually complained about the sexual harassment, it is much harder to hold the employer accountable for sexual harassment. Report your complaints in writing and keep a copy!
E. I have all of the evidence, now what do I do?
If you have documentation or evidence of the sexual harassment discussed above, I would strongly recommend you talk to a lawyer that has experience working with clients like you. Don’t wait to lose your job, contact an employment attorney with experience in sexual harassment cases as soon as you can who can help you preserve and prepare your case against the employer.
F. I was fired after I reported sexual harassment to my employer. What can I do?
Although I recommend that you do not wait until you are terminated to make a complaint about sexual harassment, if you are fired for making a complaint about sexual harassment, you may have a claim against your employer. You should definitely speak to an employment lawyer if you were fired after making a complaint about sexual harassment.
G. I have reported sexual harassment to my boss, and he/she has done nothing, and the harasser won’t leave me alone.
This is another situation where you should speak to an employment attorney with experience in sexual harassment cases. In some instances, if an employee reports sexual harassment, the employer does not take affirmative steps to fix the problem, the employer can still be liable for sexual harassment. This is another reason why It is important to make complaints about sexual harassment in writing and keep a copy of the written communication.
H. Don’t assume you will always have access to your work email or files.
Before an employer terminates someone, they will often cut the person out of all of their work files, email, information, and preventing the person from having access after they are terminated. Do not assume that you will always have access to work emails or files. Obviously, you do not want to steal anything from the employer, but also make sure to keep your own separate records, especially when documenting or making complaints about sexual harassment. Your case will be much stronger if you keep your own records away from the workplace that document your concerns about the sexual harassment or the complaints that you have made to human resources or management. This will make it much easier to bring a case against your employer if the unwanted sexual harassment is not resolved and you need to take legal action.
If you or someone you know is the victim of unwanted and egregious sexual harassment in the workplace, such as what was discussed above, contact a lawyer that can help you to formalize a plan to correct harassment, as it is your substantive right to be free from sexual harassment in the workplace.
Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to sexual harassment, discrimination, whistleblower claims, and more. For more information, go to his bio here.
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue you should consult an attorney.