Sexual Harassment

Work place harassment of any kind must not be tolerated and it is a goal of our firm to assist in its eradication whenever and wherever possible. Unfortunately, there is a huge legal difference between a claim of general work place harassment and something more specific like sexual harassment. In Georgia and a number of other states, courts take the position that harassment or bullying at work, while wrong, is generally not something that falls to the courts to remedy. In fact, courts in Georgia have held that rough language, insults, rude behavior, even behavior that is bad enough to cause anxiety and that is emotionally upsetting is not illegal. Harassment on account of one’s gender is different. Such harassment, like harassment based on certain other personal traits such as race, national origin, religion or disability, is prohibited by federal law.

A person subject to sexual harassment finds protection in the law precisely because the harassment involves sex or gender. In 1964, as a part of the Civil Rights Act of that year, Congress passed a law that included legal protections for employees that suffer from various forms of employment discrimination while working for employers of a certain size. Discrimination on account of ones gender was also made illegal. It is astounding to think that prior to 1964, such discrimination was not considered illegal but, unfortunately, that was exactly the case. In 1964, Congress remedied the problem. Because of Title VII of the Civil Rights Act of 1964, employers with 15 or more employees could no longer discriminate against employees on account of their gender as well as other inherent personal traits. It was then left to the courts to further develop the law. For instance, it was ruled that discrimination on account of gender encompassed discrimination against both men and women. Then, in 1986, in a case called Meritor Savings Bank v. Vinson, the United States Supreme Court recognized that sexual harassment creating a hostile work environment can also be gender discrimination and illegal. The Court explained that the whole point of Title VII was to “strike at the entire spectrum of disparate treatment of men and women in employment” and that included hostile work environment claims based upon sexual harassment.

The law distinguishes two basic types of sexual harassment: hostile work environment sexual harassment and “quid pro quo” or “tangible employment action” sexual harassment. Quid pro quo sexual harassment occurs when an employee suffers a tangible employment action such as the loss of a job or promotion, suspension or discharge, for refusing to submit to sexual demands. Hostile work environment sexual harassment occurs when an employee’s work environment becomes so sexually offensive that it diminishes his or her ability to perform.

In order to prove a case of sexual harassment four things must be shown: (1)that the employee was subjected to unwelcome sexual harassment; (2) that the harassment was indeed based on sex or gender; (3) that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment or that the employee suffered a tangible employment action as a result of his or refusal to submit to demands for sexual favors or because of his or her refusal to accept sexually offensive conduct; and (4) that there is a basis to hold the employer liable for the conduct.

Conduct that is Unwelcome

In order to have a case of sexual harassment, it must be shown that the conduct was unwelcome. This means that the employee, male or female, must not solicit or incite the conduct. As a result, it is helpful if a complaint or some other protest is made and that a record of that complaint is kept.

Conduct based on Sex

Conduct is based on sex where it is shown that but for an employee’s sex, be it male or female, the conduct would not have occurred.

Conduct that is Sufficiently Severe or Pervasive

In order to prove a case of hostile work environment sexual harassment it is critical that an employee be able to show that the sexual harassment was either so severe or so pervasive that it effectively changed his or her terms and conditions of employment, making it difficult to perform the job. In determining whether conduct is severe or pervasive, the courts look to the frequency, its severity, whether it is physically threatening or humiliating or merely offensive comments. For instance, physical contact with intimate parts of the body is considered the most severe type of sexual harassment and clearly something the law will protect against. Likewise, sexually offensive comments, innuendo and suggestions repeated daily would also be prohibited and clear evidence of a hostile work environment.

Tangible Employment Action

A tangible employment action means a significant change in employment status such as hiring, firing, loss of promotion, demotion, loss of benefits or even reassignment with significantly different responsibilities. If an employee suffers such an action because of his or her refusal to submit to demands for sexual favors or because of his or her refusal to accept sexually offensive conduct, an employer can be liable for sexual harassment.

Basis for Employer Liability

As mentioned, if an employee suffers from a tangible employment action because of his or her refusal to submit to a supervisor’s demands for sexual favors or because of his or her refusal to accept sexually offensive conduct, an employer can be directly liable for sexual harassment. This is because the supervisor has attempted to use his employer authorized power to force submission to his illegal demands. If there is no tangible employment action involved but, instead, merely the existence of a hostile work environment, an employer can avoid liability but only if it can prove that it both exercised reasonable care to prevent and promptly correct any harassing behavior and that the employee failed to take advantage of any preventative or corrective opportunities.

Please be aware that this is simply an overview of the law regarding sexual harassment. If you believe you have suffered from or are currently experiencing sexual harassment at work, please take the time to call us toll free at 1-855-774-3675, send us an e-mail or fill out a consultation request form and we will contact you right away to discuss your situation.