The U.S. Equal Employment Opportunity Commission (EEOC) explains on its website that “harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).”
If you want to know whether you have a sexual harassment claim that could support a successful lawsuit, the key phrases to focus on are:
- Frequent or severe;
- Creates a hostile or offensive work environment; and
- Results in adverse employment action.
The harassment must occur more than once, must be frequent and must be severe. Isolated comments do not constitute a hostile work environment. The hostile work environment standard is based on the expectations of a reasonable person. If a reasonable person would find the work environment to be hostile because of sexual harassment, it will probably meet the definition of hostile work environment.
The hostile work environment must also result in an adverse employment action like a demotion or termination. In some cases, if the hostile work environment is severe enough, it can justify the employee’s resignation. This is often called a “constructive discharge.” It is very important to consult with an employment attorney before you resign, as this standard is difficult to meet and if you resign before meeting it, there may be nothing an employment attorney can do for you.
Before filing a complaint about sexual harassment with the Human Resources department at your workplace, you may want to consult with an attorney who represents sexual harassment victims to learn how to collect evidence and present the facts. The lawyer will also be able to advise you on how to protect yourself from possible retaliation such as being subjected to more harassment, being demoted, or getting fired.
The Frequent and Severe Standard
The laws that prohibit sexual harassment at work do not make it illegal for coworkers or managers to engage in simple teasing, make offhand comments, or say or do a single offensive thing as long as the thing they do is not seriously physically harmful or emotionally traumatizing. There are exceptions to this but this is a general rule. Obviously, one incident of sexual assault could be sufficient to establish a hostile work environment.
Providing specific example of what does and does not meet the legal threshold for being considered frequent and severe is difficult. A pattern and escalation of unwelcome or threatening comments, repeated displays of pornography, and/or regular uninvited touching may support a sexual harassment/hostile work environment claim, especially if the behavior continues after the offenders were asked to stop or the employee has informed the employer and nothing has been done to remedy the conduct.
As stated above, there are also some cases where a single incident, such as an assault, could establish a sexual harassment/hostile work environment. Filing a police report is not necessary but could be helpful.
Recognizing a Hostile Work Environment
A workplace becomes a hostile environment when sexual harassment makes an employee scared, intimidated, or too stressed to do their job well. Usually, the feeling that the workplace is hostile builds over time. When the situation grows so unbearable that the victim of harassment quits, grounds for a wrongful termination lawsuit may exist if the victim can establish he or she was “constructively discharged.”
It is very important to consult with an employment attorney prior to resigning, as you want to be sure you meet the definition of “constructively discharged” before resigning.
Defining ‘Adverse Employment Decisions’
Laws such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972prohibit what is called quidproquo sexual harassment. In plain English, a manager or supervisor cannot make dating or having sex with them a condition for getting or keeping a job; qualifying for benefits, raises, and training opportunities; or earning a promotion. Nor can managers and supervisors punish or terminate an employee who turns down requests for sexual favors.
Adverse employment decisions include, but are not limited to,
- Refusal to hire;
- Denial of raises and benefits;
- Assignments to dirty, dangerous, and low-status tasks;
- Denial of promotions;
- Demotion; and
Like harassment itself, penalties for refusing sexual advances from managers or superiors may escalate over weeks and months. Speaking with an employee rights attorney will clarify how to document such a pattern of increasing mistreatment and take steps to protect yourself.