Dealing with Sexual Harassment at Work

Photo Credit: Ottinger Law

By Fairygodboss

READ MORE: Discrimination, Harassment, Pregnancy, Compensation, Sexual harassment, Disability, Workplace, United States Department of Labor, U.S. Equal Employment Opportunity Commission, Congress

How do you deal with sexual harassment at work?

This is an age-old problem, and not necessarily as uncommon as you might think. According to one survey of women in Silicon Valley, 60 percent of women employees had encountered workplace sexual harassment.

But before we delve into this form of discrimination, what is the definition of sexual harassment? The answer might surprise you. According to the United States Equal Employment Opportunity Commission (EEOC): “Harassment can include ‘sexual harassment’ or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.”

What Is Sexual Harassment?

In the United States, the sexual harassment definition coinced by the federal government agency, the Equal Employment Opportunity Commission (more commonly known as the EEOC) to include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature” as well as “offensive remarks about a person’s sex.”

In other words, despite what the term “sexual harassment” seems to imply, sexual harassment does not literally have to be sexual in nature. This may seem to be a confusing labeling or terminology issue, but according to the EEOC, sexual harassment can instead simply comprise comments or behavior that in “create a hostile or offensive work environment, or when it results in an adverse employment decision.”

Harassment does not only have to be specifically related to sexual misconduct and unwanted sexual advances, however, but can also include offensive remarks about a person’s gender. For example, under EEOC guidelines, it is illegal to harass a woman by making offensive comments about women in general. Yet while there are sexual harassment laws, they haven't necessarily done a lot to prohibit sexual harassment from occuring.

Both the victim and the harasser can be either a woman or a man, and the victim and harasser can be the same gender. Nor does the harasser need to be your immediate manager or even an employee of the same company. Under one type of sexual harassment discrimination, you simply need to experience a hostile work environment (see more below) which means that the perpetrators could be anyone you encounter in the workplace (including non-employees such as clients and customers).

Although the law doesn’t prohibit simple teasing, off-hand comments, or isolated incidents that are not very serious, 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).

We are not attorneys, and cannot furnish legal advice beyond summarizing the material on government websites. If your situation is so serious that you're considering filing a sexual harassment case or lawsuit, you've probably already received a free consultation with an attorney and considered many of the things we're about to discuss.

What does NOT Count As Sexual Harassment?

Sometimes understanding what sexual harassment is not can be helpful for someone trying to determine whether they are experiencing sexual harassment. The EEOC weighs in on this, to give an example that does not constitute sexual harassment. According to their website, “simple teasing, offhand comments, isolate incidents that are not very serious” is not illegal sexual harassment.

The key appears to be whether there is either the creation of a hostile work environment or an adverse employment outcome. What are some examples of an adverse employment outcome? For a job applicant, examples of adverse employment outcomes include but are not limited to: not being offered a position, offered a lesser position in the sense that the title or compensation levels are below what they otherwise would have been. For an existing employee, termination of a position, a denied or slowed promotion path, a demotion and many other possible actions could theoretically constitute an adverse (or negative) employment outcome.

What Is the EEOC and Why Do They Matter If I Think I've Been Sexually Harassed?

The EEOC is the single most important federal agency when it comes to workplace discrimination issues. You may not even be able to file a federal lawsuit against your employer without first dealing with the EEOC.

Headquartered in Washington D.C. with 53 field offices throughout the United States, the U.S. Equal Employment Opportunity Commission (or EEOC) is a federal agency responsible for “enforcing federal laws that prohibit discrimination against employees or job applicants because of their race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), and/or disability or genetic information.” The discrimination in question applies to many types of work situations, covering hiring, firing, promotions, harassment, training, benefits and compensation.

Moreover, the EEOC also enforces related laws that prohibit discrimination against anybody who complains, files a complaint or participates in a lawsuit or investigation about discrimination of the types described above.

What Specific Laws Does the EEOC Enforce and Oversee?

The EEOC enforces quite a number of federal laws having to do with discrimination in the workplace. Specifically, the EEOC enforces compliance with Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act (PDA) of 1978, the Equal Pay Act (EPA), the Age Discrimination in Employment Act (ADEA) of 1967, Title I of the American with Disabilities Act of 1990, Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973 and the Genetic Information Nondiscrimination Act (GINA) of 2008. More information summarizing each of these laws can be found below.

What Is Title VII?

Title VII is the portion of the Civil Rights Act of 1964 that made it illegal to discriminate against someone on the basis of race, color, religion, national origin or sex (or retaliate against someone because they tried to file a complaint, lawsuit or participated in an investigation related to discrimination). There are many nuances in case law about the details of what VII covers. The full text of Title VII of the Civil Rights Act of 1964 can be found here.

What Is The Pregnancy Discrimination Act (PDA)?

In 1978, Title VII (see above) was amended to include the fact that it was illegal to discriminate (or retaliate) against women “because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.” This was done via the Pregnancy Discrimination Act. The full text of the Pregnancy Discrimination Act can be found here.

As with most laws, the devil is in the detail under the Pregnancy Discrimination Act. To that end, in 2015, the EEOC updated their guidelines on pregnancy discrimination to provide 19 different examples and hypotheticals of what constitutes pregnancy discrimination in order to help employees, prospective job applicants and employers to identify forbidden behavior.

The four categories of discrimination the EEOC provides guidance on includes hypothetical situations where a woman is (1) currently pregnant; (2) previously pregnant; (3) potentially or intending to become pregnant in the future; and (4) experiencing medical conditions related to pregnancy or childbirth.

Examples of what constitutes discrimination are broad and include things that may not initially be intuitive such as care-giving discrimination, discrimination based on lactating or breastfeeding, discriminatory health care insurance coverage of contraception to prevent pregnancy, having an abortion (or even contemplating having an abortion), when weight lifting job requirements may constitute illegal discrimination and even whether and parental leave can be granted to men and women differently.

Examples and hypotheticals exploring what constitutes illegal discrimination under PDA can be found here.

What Does The Equal Pay Act Do?

The Equal Pay Act was enacted in 1963 to make it illegal for an employer to pay women and men differently if they perform equal work (and to retaliate against anyone who complains or files a lawsuit about a violation). You can read more about the Equal Pay Act and how it can protect you, as well as the full text of the EPA can be found here.

Types of Sexual Harassment: What Kinds of Sexual Harassment Are There?

According to the United States Department of Labor, unlawful sexual harassment in the workplace comes in two basic varieties. They describe the first type of sexual harassment as “Quid Pro Quo” harassment, i.e. someone in a position of authority who makes or recommends employment outcomes or decision on the basis / condition of a sexual act or favor from the victim. The Department of Labor describes the second kind of sexual harassment as “Hostile Work Environment” harassment. This kind of harassment results from creating an “intimidating, hostile, or offensive” work environment resulting from the “unwelcome conduct of supervisors, co-workers, customers, contractors or anyone else with whom the victim interacts on the job.”

When Is A Workplace A “Hostile Workplace”?

There’s no completely inclusive legal definition of a hostile work environment that can capture all possible scenarios of what could be deemed a hostile work environment under the law. According to the EEOC, “Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.”

While the EEOC provides some examples of what sorts of behavior would be offensive, their list is certainly not exhaustive. They explain that offensive conduct could include:

  • Offensive jokes
  • Slurs
  • Epithets or name calling
  • Physical assaults or threats
  • Intimidation
  • Ridicule or mockery
  • Insults or put-downs
  • Offensive objects or pictures
  • Interference with work performance

What Other EEOC-Enforced Discrimination Laws Might Intersect With A Sexual Harassment Issue or Claim?

Sometimes, a job applicant or employee might face discrimination on more than one front (e.g. a claim by an older woman she is being denied a promotion on the basis of her gender and her age, or a claim by a woman with disabilities that she is experiencing a hostile work environment due to her gender and also not granted reasonable accommodation for her disability). In those cases, the EEOC could also enforce discrimination complaints under the following laws, which we summarize below.

The Age Discrimination in Employment Act of 1967 (ADEA)

Broadly speaking, this law prohibits age discrimination against (or retaliation against) against an employee aged 40 and older. The full text of the ADEA can be found here.

Title I of the American with Disabilities Act (ADA) of 1990

This provision of the ADA makes it illegal to not only discriminate (or retaliate against complaints of discrimination by) individuals with disabilities in the workplace (whether by private or local or state government employers) but also requires that employers provide “reasonable accommodations” for such an employee if it does not create an “undue hardship” on the employer’s business. The definition of what constitutes a reasonable accommodation and what, on the other hand, constitutes an “undue hardship” has been the subject of much litigation. The full text of Title I of the ADA can be found here.

What Does Section 501 and 505 of the Rehabilitation Act of 1973 Prohibit?

Very similar to Title I of the ADA, Sections 501 and 505 of the Rehabilitation Act of 1973 prohibits the discrimination against (and retaliation against complaints or legal actions) individuals with a disability working within the federal government. In other words, Title I of the ADA extends the protections previously only available to federal government employees. Parallel to Title I of the ADA, Sections 501 and 505 of this law require that the federal government provide reasonable accommodation to job applicants or employees who have disabilities unless doing so would impose an “undue hardship” on the employer’s business operations. The full text of the law can be found here.

What Does The Genetic Information Nondiscrimination Act (GINA) of 2008 Do?

As of November 2009, GINA makes it illegal to discrimination against job applicants or employees due to genetic information about an individual. This information could be based on an individual’s genetic tests or those of family members, or any information an employer or prospective employer has about any condition or disease afflicting that person or their family members. As with the other federal laws that the EEOC enforces, retaliation against claims or complaints based on this type of discrimination are also illegal. The full text of the Genetic Information Nondiscrimination Act (GINA) of 2008 can be found here.

Is everyone protected by the EEOC rules and laws?

While most employers and employment situations are covered, certain small businesses with fewer than 15 employees are not covered. Most labor unions and employment agencies are also covered by EEOC laws.

Does It Really Count As Sexual Harassment If It’s Not Coming From My Boss Or I’m Not Fired?

While the most obvious form of sexual harassment comes when a manager or boss is the perpetrator, sexual harassment can actually be both (a) gender neutral (i.e. the harasser does not necessarily need to be a member of the opposite sex); and (b) someone who doesn’t even work at your company.

According to the EEOC’s definition of harassment:

  • The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
  • The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.

The EEOC specifically explains that “unlawful harassment may occur without economic injury to, or discharge of, the victim.” Simply by creating an environment that is offensive and hostile constitutes workplace harassment.

Practically speaking, if something is happening at work that creates a hostile environment and makes you uncomfortable, you will probably want to do something about it. One of the most frequent question we get at Fairygodboss is what to do in varying situations. Unfortunately there is no simple answer because every situation has its own dynamics and every workplace has its own culture and sexual harassment policy.

It may seem obvious, but it’s very important to acknowledge that every person has different levels of tolerance and a different personality when it comes to making a decision about whether to confront the person making them uncomfortable and/or report the issue to a manager or HR representative. That's why we think there's no simple, one-size-fits all solution to the problem.

While most employers have policies and procedures for sexual harassment and discrimination (which include training for staff), the unfortunate reality is that by the time an issue arises, all the preventative measures have, by definition, failed. If you feel that the officially recommended course of action at your company is not appropriate for your situation, it’s important to listen to your gut and intuition.

The real decision, in our opinion, is whether you do more than talk to (or confront) the person who is creating issues for you. We can't offer any specific advice about individual work harassment cases, but we do think there are different considerations and options depending on who the perpetrator is:

1. Your harasser is your colleague, or someone at the same level as yourself.

Simplistically, you have a choice between asking your coworker to stop behaving in a certain way, or simply avoiding them (if possible). Sometimes you may work very closely with this person and this will be a very delicate conversation that has to be handled with their ego and even potential retaliatory behavior in mind.

One option if you've already spoken to the person or just decided there's no point — speak to your manager and/or their manager (if different from yours). You can ask the perpetrator's manager to handle this in a discrete or generic way (e.g. "Justin, we have heard that sometimes the jokes you make around the office are making people uncomfortable. You should be aware and more careful with what you say.") You can also talk to someone in HR about doing the same.

2. Your harasser is your manager, or on the management team.

If person committing sexual misconduct is a manager — or your own manager — it's obviously a much trickier situation. Depending on your relationship with the person, you can consider trying to communicate the issue delicately, but more likely you will want to skip right to their manager (if they are not the CEO) or someone very senior in HR.

However, be aware that a third party may simply not respond well or side with your perspective/experience. If you have no sex discrimination or harassment evidence beyond a he-said-she-said anecdote, or the behavior is subtle, you may still get all the support in the world. However, you should also be realistic that things may not go your way and instead become quite difficult and awkward for you at work.

The potential risk may be worth it — but only you know whether that's the case and can make that decision in the context of the culture and politics in your specific workplace. Whether an individual work harassment policy truly meets your needs is ultimately up to you. This is a very difficult issue, and even women who take actions they believe are correct are not necessarily satisfied with the ultimate outcome.

3. Your harasser is a client.

In the case that the perpetrator is a client, it's something that's potentially easier to report internally to managers or an HR rep because the offender is outside the company and you may simply be allowed to switch teams or projects.

Ultimately, you need to make a choice about whether you want to work with this client in spite of what you're going through. It's a personal decision but we believe you have every right to try to get out of the situation and you don't have to confront them yourself. Your employer has a moral and legal obligation to protect you from inappropriate sexual conduct and sex discrimination.

We've heard of very supportive work environments where clients were dropped because of egregious behavior towards a team member at work, so don't necessarily assume that someone will not take your allegations seriously at your own company.

Ultimately, it's an unfortunate reality that reporting an incident may not lead to the outcome you want. The probability of this outcome is oftentimes the reason many incidents go unreported and perpetrators go unpunished. As maddening as this is, only you can decide what course of action to take in your situation.

Many women unfortunately simply feel unhappy with their options. According to the same study of Silicon Valley women who reported experiencing harassment:

- 39% did nothing because they thought it would negatively impact their career

- 30% did not report anything because they wanted to forget

- 29% signed a non-disparagement agreement with their employer (presumably after reporting the incident)

It's human nature to want to smooth over unpleasant incidents so you're not alone if you simply believe it's best to move on (if possible).

Finally, it's worth stating the obvious: experiencing sexual harassment at work is very isolating. If you can confide in a colleague or friend at work who you believe will keep your confidence, it may be a relief to simply unload what is happening to a trusted confidante.

You never know — he or she may be able to help you think through your options in the context of the business, political, and cultural context in your job, and they may even be willing to raise the fact they believe there is a problem to HR or your manager. This doesn't mean you won’t have to have any difficult conversations yourself, but the first step may feel a bit easier if you know you have allies who have gone to bat for you.

Now that we’ve discussed the nature of workplace sexual harassment as it relates to who, specifically, is harassing you, let’s take a look at what the process will typically look like if you DO choose to report the incident(s) — as well as some important steps you can take in advance of reporting.

1. For starters, you should document everything.

It’s important that you keep a detailed record of every incident of harassment that you experience. Be sure to write down dates, names, locations, witnesses, and a detailed description of the offensive conduct, and save any inappropriate email or text communication you may receive from your harasser. This will be a record that you can refer to later during any internal investigations conducted by your HR department, or if you decide to pursue legal recourse in the future.

In addition, you should be sure to compile your notes and allegations somewhere other than company property — i.e., if you’re being subjected to harassment via your company email account, you should forward them to your own personal email. As horrible as it is to say, some women in the past have faced retaliatory action for reporting having been harassed, including being dismissed (which is illegal, and definitely qualifies you for a law suit). It’s an extreme scenario, but it has happened — and if you’re fired, you won’t be allowed to retrieve any incriminating notes from your work computer to help your case. It’s best to be as prepared, and therefore as protected, as possible for any outcome.

2. Know your company’s anti-harassment policy.

If you choose to report the harassment, it will help you have an idea of what to expect if you first familiarize yourself with your company’s specific policy. Every company should have a set sexual harassment policy that tells employees what to do if they would like to file a sexual harassment claim. This policy and procedure should be available to you in an employee handbook, contract, or in another document easily accessible to you. It should tell you who to report to, what you will need to provide, and what you should do if appropriate steps are not taken. Follow the policy step-by-step. Note that you are not obligated to tell your manager any complaint you share with HR, or even that you’re consulting HR in the first place. If you truly feel that you can trust your manager, though, looping them into the situation may be useful as to you, as it can take some of the pressure off of dealing with workplace harassment and keeping up a pitch-perfect performance.

3. Know your legal rights.

Depending on your satisfaction with how well your company’s HR team and anti-harassment policy address your claim, you may want to consider pursuing legal action. As mentioned at the beginning of this article, getting a free consultation from a sexual harassment attorney can’t hurt, even before you approach HR. If you’ve already approached HR and feel that your claim was inadequately or inappropriately handled, though, you should definitely familiarize yourself with the legal rights and protections you’re owed. For example, in the case of a sexual harassment claim, it’s actually illegal for your employer to retaliate against you under Title VII. Illegal retaliation encompasses not only dismissal (including from at-will employers), but extends to things like demotions, cuts in hours or pay, and negative performance reviews, too.

Under Title VII’s federal law, your harassment complaint will most likely be categorized as either “quid pro quo” or “hostile work environment” — both of which are unlawful, but entail slightly different things. As its name would seem to suggest, quid pro quo harassment consists of being harassed through unwelcome demands for sexual favors in return for advancement or other benefits in the workplace. On the other hand, a hostile work environment consists of sexually motivated derogatory comments in the workplace. One is not exclusive of the other, it should be noted.

Federal law also protects you if you assist in the sexual harassment case of a coworker or other employee, so don’t be afraid to give a witness testimony or participate in an investigation for a case you’re not a direct part of. That still falls within your civil rights.

4. If you’re thinking of quitting — consider this first.

We absolutely understand not wanting to remain in a hostile environment where you’re facing workplace harassment and/or inappropriate sexual conduct any longer than you can help. However, if you’re considering quitting, just be aware that if you’re no longer an employee of the company, you won’t be able to file a sexual harassment claim on their policy. Without the claim, you may not have a lawsuit. If you still want to quit but are also interested in pursuing legal recourse, you should do so after you’ve filed the claim and complied with the investigation.

How, Why and When Should I File a Complaint (i.e. a Charge) with the EEOC?

Filing a complaint with the EEOC is known as “filing a charge of discrimination” and is not the same thing as filing a lawsuit. If you file a charge with the EEOC, they will invest the claim and assess whether there has been illegal discrimination under the laws they enforce. If the EEOC determines there has been a violation of the law, they will try to settle the claim with the employer. They have no obligation to file a lawsuit on the victim or aggrieved party’s behalf.

When and how you should file a charge with the EEOC depends on what kind of charge you are filing and whether you work for the federal government. For example, federal employees have a separate complaint process they must follow, involving first contacting an Equal Employment Opportunity counselor. You must initiate this contact within 45 days from when the discrimination occurred. Most likely, you will be referred to mediation or another alternative dispute resolution mechanism or for EEO counseling.

For all other kinds of employees, if your complaint is about discrimination under any other law besides the Equal Pay Act, then you will not be able to file a job discrimination lawsuit against your employer without first filing a charge of discrimination with the EEOC. Moreover, you must file this charge of discrimination with the EEOC within a timeline that varies depending on what kind of discrimination you believe you suffered.

If You Are Filing A Claim For An Incident (Or Series of Incidents) of Discrimination In The Past

You generally will have 180 calendar days to file a charge from the last day the discriminatory event occurred. This time period will extend to 300 calendar days if there is also a state or local agency that prohibits employment discrimination under the same basis as the federal law. In the case of age discrimination, there is a slight nuance as you may only receive the benefit of the longer 300 calendar filing window if there is both local law prohibiting age discrimination and also a state or local agency enforcing such age discrimination law.

If You Are Filing A Claim For Ongoing Discrimination

If the discrimination you are experiencing is “ongoing”, then you must file your charge of discrimination within 180 calendar days (or 300 calendar days assuming there is a local law or enforcement agency prohibiting the type of discrimination you experienced) of the last incident of harassment you suffered.

If You Are Filing A Claim For Discrimination Under The Equal Pay Act

Prohibited discrimination under the Equal Pay Act is the only exception to the rule that you must first file a charge of discrimination with the EEOC before you can file a lawsuit against your employer. Moreover, the time limit for filing an EPA lawsuit is two to three years (2 years from receipt of the last discriminatory paycheck and 3 years in the case of intentional or willful discrimination allegations).

You can theoretically both file a claim of discrimination for discriminatory pay based on gender under Title VII as well as the Equal Pay Act. In the former situation, you must abide by the time limits and first file a charge of discrimination with the EEOC, as with other discrimination claims under Title VII.

When Does The Clock Start On Discrimination Based On Unequal Pay?

Prior to 2009, the 180 day filing timeline was considered re-set at every instance of a paycheck. In other words, it would be difficult for a victim of unequal pay to claim much in the way of damages or compensation for any payments she (or he) received at work prior to 180 days from the last paycheck received. However, in 2009, Congress enacted the “Lilly Ledbetter Fair Pay Act of 2009” based on the now infamous law inspired to correct the outcome of Lilly Ledbetter’s lost case against her employer for wage discrimination based on her gender -- due to the calculation of when the filing date clock started ticking.

Today, there is a clear retroactivity clause allowing victims of unequal pay who typically do not know they are unpaid fairly, to set the clock back on timing for their discrimination case.

This has been a lengthy exploration of various aspects of sexual harassment. For further reading on sexual harassment:

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