Sexual Harassment At Work
What is Workplace Sexual Harassment?
Sexual harassment at work is a form of unlawful sex discrimination. The law defines sexual harassment as, unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex that is severe or pervasive and affects working conditions or creates a hostile work environment.
There are several key phrases in this definition that are important to understanding your rights and any potential legal claims you may have:
To be illegal, sexual harassment must be unwelcome. Unwelcome means unwanted. For this reason, it is important to communicate (verbally, in writing, or by your actions) to the harasser that the conduct makes you uncomfortable and that you want it to stop.
Conduct “of a sexual nature” or “based on sex”
Many different kinds of verbal, physical, nonverbal or visual conduct of a sexual nature may be sexual harassment. Here are some examples:
Verbal or written:
- Commenting about a person’s clothing, personal behavior, personal (romantic) relationships, or body;
- Making sexual or sex-based jokes or innuendoes;
- Requesting sexual favors or dates;
- Spreading rumors about a person’s personal or sexual life; and/or
- Threatening a person for rejecting or refusing sexual advances or overtures;
- Impeding or blocking someone’s movement;
- Inappropriate touching of a person’s body or clothing;
- Kissing, hugging, patting, or stroking; and/or
- Assaulting (touching someone against her will or without her consent).
- Looking up and down or staring at a person’s body;
- Making derogatory gestures or facial expressions of a sexual nature; and/or
- Following a person around.
- Displaying or sharing posters, drawings, pictures, screensavers or emails of a sexual nature.
Sexual harassment does not have to be sexually suggestive. Harassing conduct can also be unlawful if based on your sex or gender. For example, if you are a woman working as a carpenter on an otherwise all-male job, and you are the only one who is singled out for harsh criticism and verbal abuse even though your job performance is the same as your male co-workers, such conduct may be a form of unlawful sexual harassment.
“Severe or Pervasive”
To meet the legal definition of “harassment,” the conduct in question must either be severe or pervasive. It does not have to be both.
The law generally doesn’t prohibit simple teasing, isolated offhand comments, or incidents that happen only once and are not serious. So, generally speaking, a single unwanted request for a date or one sexually suggestive comment that offends you and/or was inappropriate may not be “severe” or “pervasive.” However, a single incident of very serious conduct, like rape or attempted rape, would probably meet this part of the definition of sexual harassment. (Such conduct may also violate other laws and/or constitute criminal behavior.)
Harassment that is less severe but happens frequently or persists over time may be “pervasive,” and therefore also meet this part of the definition. So, a number of relatively minor separate incidents may add up to sexual harassment if the incidents negatively affect your work environment. To determine whether the harassing conduct is “pervasive,” you can ask yourself: How many times did the incidents occur? How long has the conduct been going on? Have other people (of my same sex or gender) also been treated this way?
“Affects Working Conditions” or “Creates a Hostile Work Environment”
If you are fired, refused a promotion, demoted, given a poor performance evaluation, reassigned to a less desirable position, shift, or location, or there is another concrete negative employment action taken against you because you reject a sexual advance or other conduct based on your sex, then the sexual harassment has likely “affect[ed] your working conditions.”
But even if your employer does not take some action that changes the status of your employment or directly results in you losing money (which presumably would happen if you lost your job, were demoted, or had your hours cut), you may still have a claim for unlawful sexual harassment if the conduct unreasonably interferes with your work performance or creates an intimidating, hostile, or offensive work environment.
For example, it may be illegal sexual harassment if repeated sexual comments make you so uncomfortable at work that your performance suffers or if you decline professional opportunities because it will put you in contact with the harasser.
Keep in mind that to create a “hostile work environment,” the conduct has to not only make you personally feel intimidated or offended at work, but also be the type of behavior that would make a reasonable person of your sex, facing similar circumstances, feel that way.
Sexual Harassment is Against the Law
The laws against sexual harassment are designed to protect you from harassment by your boss, your supervisors, your co-workers, and customers or clients that you have to deal with at work. These laws apply to both men and women, and prohibit sexual harassment whether it is directed at someone of the same or the opposite sex.
The federal law prohibiting sexual harassment in the workplace is Title VII of the 1964 Civil Rights Act, often just called “Title VII.”
Title VII applies to most private and public employers, labor organizations, employment agencies, and joint employer-union apprenticeship programs with 15 or more employees.
California State Law
The California Fair Employment and Housing Act (FEHA) prohibits sexual harassment in employment. FEHA applies to private public employers, employment agencies, labor organizations, state licensing boards, and state and local governments that have 1 or more employees.
Other State Laws
Like California, most states have a law that makes sexual harassment – and other forms of sex discrimination – illegal. Equal Rights Advocates’ Advice and Counseling Line can refer you to a local attorney.
Can My Employer Retaliate Against Me For Complaining or Opposing Sexual Harassment?
No. Not only is sexual harassment against the law, so is retaliating (punishing) someone for complaining about sexual harassment or for supporting or participating in an investigation (or other legal action) related to sexual harassment.
For example, if you complain about sexual harassment and are forced out on leave while the harasser continues to work, or you are reassigned to a less desirable position after you write a letter describing sexual harassment of someone else that you witnessed, these are potentially forms of unlawful retaliation. If your employer retaliates against you for reporting or opposing sexual harassment or for participating in an investigation or legal action related to sexual harassment, you may consider taking any or all of the steps suggested below (see “What You Can Do” section).
Employer Responsibilities to Employees
Employers covered by the federal or state laws prohibiting sexual harassment are required to take reasonable steps to prevent and promptly correct sexual harassment that occurs on the job.
One important factor in determining whether an employer has met the requirement to take “reasonable steps” to prevent and/or stop sexual harassment is whether it has issued and distributed to employees a policy prohibiting sexual harassment and informing employees how to make a complaint. Of course, if an employer has such a policy, but doesn’t tell employees about it, doesn’t train managers how to follow it, or just fails to enforce it, then the employer may not be taking reasonable care. The same may be true if an employer has lawful policies, and trains employees about them, but then fails to adequately investigate sexual harassment complaints once they are made.
It is important to note that before an employer can be held legally responsible for sexual harassment committed by someone who is not the complaining employee’s “supervisor,” the employer must be on notice that the harassment has occurred.
What You Can Do
When you are deciding what to do, remember that every situation is different. There is no one best thing to do. However, reporting the sexual harassment to your employer is usually an important first step. You then have the option to use your company’s sexual harassment complaint process, file a charge with a state or federal agency, and/or go to court.
It is important to talk with a lawyer or legal services organization like Equal Rights Advocates to discuss your choices (see “Resources” below). They can help you to understand your choices, their benefits and risks, as well as the strengths and weaknesses of your case. To request free legal Advice and Counseling, please visit the Advice and Counseling Center.
Here are a few tips and options for you to consider if you think you are facing sexual harassment at work:
- Say “No” Clearly. Tell the person that his/her behavior offends you. Firmly refuse all invitations. If the harassment doesn’t end promptly, ask the harasser to stop and put it in writing. Keep a copy of this written communication.
- Write Down What Happened. As soon as you experience sexual harassment, start writing it down. Write down dates, places, times, and possible witnesses to what happened. If possible, ask your co-workers to write down what they saw or heard, especially if the same thing is happening to them. Remember that others may (and probably will) read this written record at some point. It is a good idea to keep the record at home or in some other safe place. Do not keep the record at work.
- Report The Harassment. If it is possible for you to do so, tell your supervisor, your human resources department or some other department or person within your organization who has the power to stop the harassment. If you can, it is best to put your complaint in writing.
- Start A Paper Trail. When you report the sexual harassment to your employer, do it in writing. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. Keep copies of everything you send and receive from your employer.
- Review Your Personnel File. Most states give employees the right to review and/or make copies of their personnel files. In California, you also have the right to obtain a copy from your employer of any document that you signed. Both current and former employees can take advantage of these laws to get access to their own personnel and other employment records.
- Find Out About Your Employer’s Grievance And Complaint Procedures. Many employers have policies and procedures written down that deal with how to make and respond to sexual harassment complaints. To find out your employer’s policies, look for or ask to see a copy of your employee manual, any written personnel policies, and/or speak to someone in the human resources department, if one exists. You may be able to use these procedures to stop the harassment and resolve the problem. At the very least, following your employer’s complaint procedures (if any exist) will show that you did what you could to make the employer aware of the harassment.
- Involve Your Union. If you belong to a union, you may want to file a formal grievance through the union and try to get a shop steward or other union official to help you work through the grievance process. Get a copy of your collective bargaining agreement to see if it discusses the problems you are experiencing. Keep in mind that if you use your union’s grievance procedure, you must still file a complaint (or “charge”) of discrimination with a government agency before filing a lawsuit in federal or state court.
- File A Discrimination Complaint with A Government Agency. If you want to file a lawsuit in federal or state court, you must first file a formal sexual harassment complaint (or “charge”) with the federal Equal Employment Opportunity Commission (EEOC) at www.eeoc.gov or 1-800-669-4000 and/or your state’s fair employment agency (if your state has one). In California, the state fair employment agency is the Department of Fair Employment and Housing (DFEH), at www.dfeh.ca.gov or 1-800-8841684. If you are a federal employee, follow federal guidelines on how to file a sexual harassment complaint. You can obtain these guidelines from the EEOC by contacting them 1-800-669-4000.
- Be Aware of Deadlines! Do not delay in reporting the problem to your employer, if it is possible to do so. If you start to feel that your employer’s process for dealing with the sexual harassment may not help you, be aware that doing nothing could mean losing your rights! This is very important! There are legal deadlines for filing a formal complaint or charge of discrimination with government agencies, and you cannot bring a lawsuit against your employer unless you have first filed a complaint with the EEOC or the agency that enforces your state’s employment discrimination laws.
Under federal law, you have 300 days from an act of sexual harassment to file a complaint with the EEOC. Under your state’s fair employment law, if one exists in your state, you may have as few as 180 days to file a complaint. Filing deadlines vary from state to state so it is important to check with the EEOC or a legal organization to find out the time limits. Contact Equal Rights Advocates or a lawyer to find out what you need to do and by when.
File A Lawsuit. After you file a formal complaint with the EEOC and/or your state’s fair employment agency, you may also consider filing a lawsuit. The remedies or relief you can seek in a lawsuit will vary, but may include money damages, getting your job back (if you’ve been fired or transferred to another position), and/or making your employer change its practices to prevent future sexual harassment from occurring. If you are thinking about filing a lawsuit, you should contact a lawyer to assist you. For more information or referrals, please contact Equal Rights Advocates.
Equal Rights Advocates Can Help:
ERA provides a toll-free multi-lingual Advice and Counseling Line (1-800-839-4372), where you can receive advice and information on your legal rights. All calls are confidential.
U.S. Equal Employment Opportunity Commission (EEOC)
(The federal agency that enforces workplace sexual harassment laws)
(800) 669-4000: Toll-free phone number that automatically connects you to your local EEOC office.
California Department of Fair Employment and Housing (DFEH)
(The state agency that enforces the state workplace anti-discrimination laws.)
(800) 884-1684: Within California
(916) 227-0551: Outside California
For all other states, check the state government webpage for contact information for your local agencies.
EQUAL RIGHTS ADVOCATES
1170 Market Street
San Francisco, CA 94102
Phone: (415) 621-0672
Fax: (415) 621-6744
Advice and Counseling
Equal Rights Advocates is a nonprofit legal organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls until equality is secured for all.