What Is Sexual Harassment?
Email this article to a friend
What is sexual harassment? Can you compliment the way people look at work? Can you talk about who might be gay or straight?
And, if it’s wrong to do even these little things, why do so many bosses still date their secretaries and subordinates?
This article explains some basic sexual harassment law and what you should know to protect yourself against (1) being sexually harassed; (2) being punished if you report sexual harassment; or (3) being falsely accused of sexual harassment.
Note: The advice provided here is for general education only. If you think you might be involved in any actual sexual harassment, you should meet with a good local lawyer who specializes in employment law because the laws are different in different states. Also, every case is different, so each one must be handled differently depending on the facts.
“QUID PRO QUO” SEXUAL HARASSMENT
“Quid pro quo” is Latin for “something for something” to describe a more or less equal exchange of goods or services. In law, quid pro quo sexual harassment is when a supervisor lets a subordinate know, in one way or another, that sexual favors will be accepted in exchange for any type of work benefit, such as continued employment, raises, bonuses, promotions, or preferred hours, assignments, or transfers.
It is true that the sexual attention must be unwanted by the subordinate to qualify as sexual harassment. For example, if the subordinate suggests this type of exchange and the supervisor accepts, that is not sexual harassment. Or, if the supervisor suggests it and the subordinate actually wants to do the exchange, that’s not sexual harassment, either. However, be careful! Chances are the willing subordinate will later say that he or she felt pressured into doing it because you were his or her boss. If a jury believes him or her, you are in big trouble! And, even if you are able to convince a jury that he or she is lying or was mistaken, it will cost you tens of thousands of dollars in legal fees to do it.
Nonetheless, a lot of bosses/supervisors still date their employees/subordinates. They have decided to take the risk that the person they are dating won’t turn around and sue them for sexual harassment. That’s a big risk. If the relationship ends badly, that person might sue you for quid pro quo sexual harassment. If the jury believes them and not you, you will have to pay for that person’s lost income, emotional distress, and enough money to punish you and your company for your bad acts!
How to Avoid Being Accused of Sexual Harassment
My best advice to you about romance or sex with anyone at work is just don’t do it. If you are really attracted to someone at work, even your same level coworkers, one of you should get a job at a different company before you start seeing each other romantically.
How to Protect Yourself from Quid Pro Quo Sexual Harassment
The only way to protect yourself from quid pro quo sexual harassment is to clearly let your boss/supervisor know you are NOT interested. Don’t be shy or try to be nice. You will just end up confusing him or her and make things worse. When it comes to potential sexual harassment at work, you need to be absolutely clear.
You can say, “Bob/Carol, I want to be absolutely clear. No thank you. I am only interested in a professional relationship with you. Is that going to be a problem?”
Depending on what he or she says next, you might have a sexual harassment lawsuit. They might say, “No problem. I just wasn’t sure how you felt about me.”
Don’t back down now and say something to try to make them feel better like, “Well, I’m flattered. If things were different, if we didn’t work together, who knows?” That will only send mixed messages, create false hope, and worst of all may encourage him or her to continue the harassment. Say instead something like, “Then, it’s good we had this talk. Now, we’re all clear. I enjoy our working relationship.”
Also, just to be on the safe side, start writing down the details of all incidents that make you feel uncomfortable. Record the date, time, location, and exactly what was said and by whom. If you never need to use these notes, that’s great. But, if you do, they’ll prove very helpful to your case.
If your supervisor reacts badly to your letting them know you are not interested, or you start to feel you are being retaliated against for clearly letting them know that, you now have a case for quid pro quo sexual harassment and a case for retaliation. See below. But you have to ask yourself some tough questions about whether you want to go forward with a formal complaint or just move on to a different employer.
The Formal Complaint Process
a. Employer’s Internal Investigation
If you want to stay where you work even though your supervisor continues to harass you, you need to report the incidents to the human relations department or to a higher level supervisor than your supervisor. Keep careful records of everything that happens. You should know that everyone at work will find out about the investigation because a lot of your coworkers will be interviewed.
In California, the law requires your employer to conduct an investigation, including interviewing all persons who might know anything about your complaint and your supervisor’s interactions with you and others he or she has supervised.
b. EEOA or FEHA Investigation
In California, you can also file a complaint with the EEOA (“Equal Employment Opportunity Agency”) or FEHA (“Fair Employment and Housing Act”) immediately. Or, you can wait until your employer has had the opportunity to finish the internal investigation. If you really want to keep working there, it might be better for you to wait to see if your employer can fix the problem to your satisfaction without getting the government agencies involved. But that’s entirely up to you.
You can also consult with a few good local employment law attorneys to ask their opinions about your particular situation. Usually such attorneys will give you a free consultation to find out if your case is worth their time. If you have a good case, they may want to represent you on a contingency fee basis, which means they will take a percentage of whatever money you end up getting as payment for their work. Most contingency fee contracts pay one-third to the lawyer, but this percentage varies.
In California, you have one year until after the last act of sexual harassment to file your complaint with the EEOA or FEHA. And, you must file a complaint with the EEOA or FEHA before you can file a lawsuit in regular court. If you do file a complaint with the EEOA or FEHA, they will conduct their own investigation and either (1) pursue the claim against your employer themselves; (2) dismiss your claim as not strong enough to pursue any further; (3) or issue you a “right to sue letter.” A right to sue letter means you at least have enough facts to file a lawsuit in regular court. You have one year after receiving that letter to file any lawsuit based on the acts you complained about in the EEOA or FEHA complaint, if you choose to do file a lawsuit.
HOSTILE ENVIRONMENT SEXUAL HARASSMENT
Hostile environment sexual harassment can be everything from looking at a woman or man if they feel you are looking at them sexually to talking about anything related to sex or sexual orientation if the discussion offends anybody at work. This type of sexual harassment is very broad and can include complimenting coworkers on their appearance or speculating about a person’s sexual orientation—again, if it offends anyone at work.
More obvious examples of hostile environment sexual harassment (if it offends anyone at work) include:
• Photos, paintings, or drawings of sexy men or women displayed anywhere.
• Jokes, comments, or gestures about sex, yours or anyone else’s.
• Unwanted touching, hugs, whispering, or getting too close.
• Unwanted stares or admiring looks, winks, raised eyebrows, etc.
• Any kind of unwanted sexual attention.
Sexual harassment is not really the same as gender discrimination for being a female or a male, but these are often lumped together because if a male boss is sexually harassing only his female employees, he is also discriminating against them based on their gender.
As with quid pro quo sexual harassment, the best way to avoid being accused of hostile environment sexual harassment is to just not do any of these things.
Unfortunately, hostile environment type sexual harassment is estimated to occur in as many as 40 – 80% of all work places. So, simply avoiding it might be difficult. If it really bothers your ability to work and your attempts to let everyone know this hasn’t worked in improving the situation, you might need to decide whether to switch companies or file an EEOA/FEHA complaint, or both. See “The Formal Complaint Process” subsection, above.
UNLAWFUL RETALIATION
If you do make a formal complaint, either to your own human resources department or with the EEOA or FEHA, people at your work will naturally start treating you a little differently. But, if they start treating you badly, such as giving you less desirable work, or not inviting you to company meetings anymore, you should make a new formal complaint for unlawful retaliation.
The law protects everyone who files a sexual harassment complaint from all work-related retaliation for it. If you can prove they retaliated against you for filing the complaint, the court will punish your employer by awarding you with a lot of money.
Even if you did not file the complaint, but you cooperated with the investigation by providing information helpful to the investigation, and your employer retaliates against you for it, the law protects you, too. Then, you can file your own separate retaliation complaint with the company, EEOA, or FEHA.
CONCLUSION
We all have a right to work without the stress of unwanted sexual attention. Be clear about what you want and don’t want in your relationships with the people who may be interested in you romantically at work. Be careful not to confuse people or give mixed messages. Flirting is not harmless at work. See “High-Maintenance Personalities: The Flirt.” It’s against the law if the person you’re flirting with doesn’t like it. If you are the victim of sexual harassment, weigh the benefits against the emotional drain that filing formal complaints may take. Depending on your specific situation, the best choice might be to just find another place to work.
Be sure to get the latest articles as soon as they’re posted by signing up here!
[For “How to Think Like a Lawyer,” click here.]
