Sexual Harassment in the workplace occurs when a victim is subjected to a hostile work environment due to sex or where a term or benefit of employment is conditioned on the submission to a sexual advance (quid pro quo).
- Hostile Environment Sexual Harassment
- Quid Pro Quo Sexual Harassment
- Difference Between Hostile Environment and Quid Pro Quo Sexual Harassment
- Sexual Harassment Emotional Distress/Mental Anguish Damages
- Assault and Battery With Sexual Harassment
- Intentional Infliction of Emotional Distress And Sexual Harassment
- False Imprisonment And Sexual Harassment
- Retaliation for Complaining About Sexual Harassment
- Other Damages Available for Sexual Harassment And Retaliation Victims
A hostile work environment occurs when a person is subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person's employment or creates an abusive working environment. In a hostile work environment, the harasser may be a woman or a man. He or she can be the victim's co-worker or supervisor. Most laws also require employers to protect their employees from harassment by vendors, independent contractors, customers and others. Where an employer becomes aware of a hostile work environment and fails to take remedial action, that employer may be held liable whether or not the harasser is an employee. Harassment that constitutes a hostile environment is any conduct based on sex that becomes sufficiently severe that it creates fear, intimidates, ostracizes, psychologically or physically threatens, embarrasses, ridicules, or in some other way unreasonably over burdens or precludes an employee from reasonably performing his/her work duties. Conduct that may constitute sexual harassment include the following unwelcome acts:
- Sexually Explicit E-mails o Sexually explicit flyers
- Sexual innuendos o Sexual propositions
- Sexual threats o Sexual insults
- Obscene jokes o Lewd remarks
- Demeaning names
- Unwelcome touching
- Sexual sounds
- Viewing websites and videos
- Cat calls o Work sabotage to intimidate
- Physical contact of a sexual nature Requests for sexual favors, sexual inquiries or demands
- Offensive and inappropriate language
- Other conduct of a sexually degrading nature
- Explicit pictures displayed in plain view or emailed
In evaluating hostile work environment sexual harassment, courts often look at the frequency, severity, nature of the harassment as well as the power relationship between the harasser and the victim to judge whether the conduct is sufficiently severe to alter the victim’s work environment. Only the hostile environment harassment that meets this threshold can support a sexual harassment lawsuit. As a result, isolated incidents of a trivial nature typically are insufficient to support a lawsuit.Quid Pro Quo Sexual Harassment
Quid pro quo sexual harassment generally occurs when a benefit of employment is conditioned upon a sexual favor. A classic example of quid pro quo sexual harassment is where a boss demands a sexual favor and threatens termination if refused. Requests for sexual advances that are tied to employment benefits or employment decisions are of the quid pro quo form. Employment benefits or decisions include matters such as promotions, demotions, raises, work benefits, performance evaluations, bonuses, overtime assignments, work schedule changes, transfers, inferior work assignments, and such.Difference Between Hostile Environment and Quid Pro Quo Sexual Harassment
A key difference between hostile environment sexual harassment and quid pro quo sexual harassment is that employers are generally automatically liable in quid pro quo cases where the victim actually suffered a loss of an employment benefit. Furthermore, one instance of quid pro quo harassment may support a sexual harassment lawsuit. In hostile work environment sexual harassment cases, employers may defend the lawsuit by claiming that the victim failed to complain to management thus depriving the employer an opportunity to remedy it. Furthermore, hostile environment sexual harassment cases must be severe or pervasive to support a lawsuit. As such, one isolated instance of non-intrusive sexual comment is insufficient to support a hostile work environment sexual harassment case. Quid pro quo harassment neither has to be severe or pervasive to support a harassment lawsuit.
There are differences in damages recoverable also. For hostile work environment cases, the damages are generally in the nature of emotional distress and mental anguish. Quid pro quo sexual harassment cases typically include elements of emotional distress/mental anguish damages as well as damages for the lost employment benefits that resulted from the rejection of the sexual advance.Sexual Harassment Emotional Distress/Mental Anguish Damages
Sexual harassment, over time, can negatively affect the victimized individual. Some common side effects of sexual harassment include:
- Crying spells
- Decreased work performance
- Increased absenteeism
- Overall depressive mood
- Excessive eating and/or drinking
- Weight gain, weight loss, loss of appetite
- Increased blood pressure
- Mood swings
- Strain on family relationships
- Loss of sexual desire
- Loss of the ordinary pleasures of life
- Loss of trust in different environments
- Loss of trust in people
- Relocating to another city or state
- Loss of references or recommendations
- Panic attacks and nightmares
These symptoms are generally evaluated in determining mental anguish and emotional distress damages. The number, severity, duration of each of the symptoms generally form the basis of an award of damages.
Sexual harassment victims that were also touched and placed in fear of imminent offensive bodily contact may also sue for assault and battery under state law. Battery requires proof that the victim was subjected to an offensive bodily contact. Assault requires proof that the victim was placed in fear or apprehension of imminent offensive physical contact. In other words, the victim must prove that the harasser’s actions caused her to be in fear of imminent battery--offensive bodily contact. To prove assault and battery, a victim must show that he/she did not invite or consent to the assault and battery. Assault and battery claims have a different measure of damages from sexual harassment cases. Furthermore, the cap on damages in some civil rights statutes do not apply in assault and battery cases, resulting in possible payment of larger damages to the victim.
Additionally, some civil rights statutes only permit lawsuits against employers and not individuals. With assault and battery however, the harasser can be sued individually. Some laws also permit assault and battery suits against the employer where the employer condoned, participated in, or encouraged the assault and battery. Punitive damages are also sometimes allowed in assault and battery cases.Intentional Infliction of Emotional Distress And Sexual Harassment
Many victims of sexual harassment often suffer other forms of humiliating and demeaning treatment of a non-sexual nature. Sometimes, this results from efforts of the harasser and his/her friends to coerce the victim into submission or as punishment for resisting. In some instances, the victim’s work tools are removed, co-workers stop speaking to the victim, the victim’s work supplies are damaged, their cars vandalized in the parking lot and they may also be threatened with physical harm by the harasser and his/her friends. In other instances, the victim is assigned to do menial work or work in an isolated, wet or overly cold office. Other harassers may require the victim to lift objects that are heavier than average, move to a smaller office or account for their whereabouts in more detail than is required of other employees.
When such conduct becomes extreme, outrageous and beyond the bounds of decency, the harassment victim may also bring a case of intentional infliction of emotional distress either as part of the sexual harassment case or in a different case. Some states permit a sexual harassment victim to bring a case of intentional infliction of emotional distress claim based on the same allegations as the sexual harassment claims, others do not. It is thus important that an experienced sexual harassment employment attorney be consulted to evaluate this option.
Intentional infliction of emotional distress claims have a different measure of damages from sexual harassment cases. First, the damages allowable are broadened to include recovery for non-sexual conduct of a demeaning nature. Furthermore, the cap on damages in some civil rights statutes do not apply resulting in possible payment of larger damages to the victim. Additionally, some civil rights statutes only permit lawsuits against employers and not individuals. With intentional infliction of emotional distress however, the harasser can be sued individually. Some laws also permit these suits against an employer where the employer condoned, participated in, or encouraged the conduct complained of. Punitive damages are also sometimes allowed in cases of intentional infliction of emotional distress.False Imprisonment And Sexual Harassment
False imprisonment is much like the assault and battery and intentional infliction of emotional distress claims. This claim is typically found in sexual harassment lawsuits where the harasser cornered or prevented the victim from leaving. For example, where the harasser blocks the exit or locks himself in a room or car with the victim and refuses to permit the victim to leave. The measure of damages for this tort is much like those recoverable for the other torts of assault and battery and intentional infliction of emotional distress.Retaliation for Complaining About Sexual Harassment
Most civil rights laws prohibit any form of retaliation against a sexual harassment victim that complains or resists the harassment and discrimination. Retaliation is generally defined as any adverse employment action taken by an employer or their supervisors against a resisting or complaining employee as a result of the employee’s complaints or resistance.
Retaliation may takes the form of termination, disciplinary write-up, demotion, pay cut, reduced schedule, denied overtime, reduced hours, reduced benefits, reduced responsibilities, poor performance evaluation, unfavorable transfer, undesirable shift change. Retaliation also take other forms such as ostracism, refusing to speak or work with the complaining employee, refusal to answer their questions, sabotage, increased or decreased work load, supervisor’s refusal to acknowledge the victim on a day to day basis, refusal to assist or provide necessary assistance or help to the victim and the assignment of menial tasks to the victim.
Victims of retaliation may sue and recover for retaliation. Damages recoverable will typically include any lost pay and benefits, mental anguish/emotional distress damages, and sometimes punitive damages.Other Damages Available for Sexual Harassment And Retaliation Victims
Generally, the following damages are available to victims of sexual harassment and/or retaliation: backpay, lost benefits, lost retirement/401K benefit, subsequent job search expenses, mental anguish/emotional distress damages, out-of-pocket expenses, expenses for medical treatment, psychiatric treatment and counseling, diminished earning capacity resulting from the harassment. Where termination or a demotion occurred, the courts typically reinstate the victim to the position that she/he would have had absent the harassment and/or retaliation. In particularly egregious cases, courts would award punitive damages. Most civil rights laws also permit successful sexual harassment claimants to recover all or part of their attorney’s fees and legal expenses.
In sexual harassment cases, the specific damages that are allowed as well as the standard of proof are governed by the specific laws under which the lawsuit is brought. Some laws have caps on damages while others do not. Punitive damages are awardable under some statutes but not by others. Similarly, some statutes only permit recovery of actual damages and not mental distress damages. As such, it is important to consult an experienced employment sexual harassment attorney at the outset to evaluate the proper course to follow depending on the jurisdiction and laws.
- Frequently Asked Questions About Sexual Harassment
- Sexual Harassment Case Interview Checklist