Sexual Harassment in the Workplace
Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act prohibit sexual harassment in the workplace. EEOC-Guidance-Sexual-Harassment-Title VII. Generally, sexual harassment is unwelcome behavior that creates a hostile work environment due to an employee’s sex. The harasser may be a manager or supervisor, a co-worker, a customer or a vendor. The harasser is frequently – but not always — in a position of power over the victim. While sexual harassment is often perpetrated by a harasser of a different gender, same-sex harassment also violates the law. Sexual harassment may lead to other prohibited employment practices, such as unlawful retaliation. Baird Quinn LLC’s sexual harassment lawyers have significant experience representing clients at all phases and in all aspects of sexual harassment cases. Contact Us
What is Sexual Harassment?
Sexual harassment typically takes two forms. The U.S. Equal Employment Opportunity Commission (“EEOC”) has defined sexual harassment at work as including unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. While this area of the law is constantly evolving, there are two basic legal theories of sexual harassment – quid pro quo and hostile work environment.
“Quid pro quo” literally means “something for something,” and essentially means that an individual is forced to choose between either suffering an adverse employment action (i.e., denial of a raise or promotion, or termination) or submitting to sexual or romantic overtures. In other words, submission to unwelcome sexual advance is the basis for an employment decision. Further, when rejection of requests for sexual advances leads to an employment decision, such as a decision to hire, fire, or transfer, quid pro quo sexual harassment has occurred.
Hostile work environment sexual harassment occurs when unwelcome sexual conduct or romantic overtures unreasonably interfere with an employee’s job performance or creates a hostile, intimidating, or offensive work environment. Under hostile environment sexual harassment, the harassment need not result in an adverse employment action to be actionable. This form of sexual harassment at work may include, but is not limited to the following unwelcome conduct:
- Repeated requests for sexual favors
- Demeaning sexual inquiries and vulgarities
- Offensive or degrading language
- Sexually offensive, explicit or sexist signs, cartoons, calendars, literature or photographs displayed in plain view
- Criminal sexual conduct
- Sexists behavior
- Sexual or romantic advances
In order to be actionable, the unwelcome conduct must be severe and pervasive enough to give rise to a hostile work environment. Minor isolated incidents or harmless lighthearted teasing ordinarily do not amount to a hostile work environment.
Sexual harassment in the workplace may occur outside of the office or work area, such as at a holiday or office party.
Who is Protected by the Laws Against Sexual Harassment?
The answer, in short, is anyone who is subjected to quid pro quo or hostile work environment sexual harassment regardless of gender or position. The victim of sexual harassment may be a man or a woman and need not be of the opposite sex of the harasser. The victim could be any person that is affected by the offensive conduct. The sexual harassment does not have to be directed at a person to be actionable by that person. Nor must the person harassed show an economic injury (e.g., monetary loss). As noted above, sexual harassment is actionable even if the person harassed does not suffer adverse employment action (e.g., fired, demoted, denied promotion etc.).
Employer Responsibility for Sexual Harassment by Supervisors and Co-Workers
An employer may be held liable for sexual harassment by a supervisor or co-worker, or even a non-employee, such as a customer or vendor, under certain circumstances. An employer’s liability depends on several circumstances, including the position of the alleged harasser, whether the employer had actual or constructive knowledge of the sexual harassment, whether the employee was subjected to a tangible employment action, whether the employee complained to the employer about the sexual harassment, and the steps, if any, taken by the employer to prevent or address sexual harassment in the workplace. Any employee affected by sexual harassment should take advantage of any complaint procedure made available to report unlawful harassment or discrimination. Otherwise, the employer may defend against a claim by arguing that it attempted to curb harassment through the implementation of appropriate procedures, such as procedures for receiving and resolving complaints of harassment, but the employee failed to take advantage of that procedure.
What Steps Should an Employee Take if Subjected to Sexual Harassment
If you believe that you have been subjected to sexual harassment, you should be proactive by taking the following steps:
1. Document All Incidents of Sexual Harassment
The employee has the burden of proving that sexual harassment occurred – whether it is being investigated by the employer or EEOC, or being considered by a judge or jury. In virtually all cases, the harassers deny engaging in the conduct and circumstantial evidence is necessary to show that it actually occurred.
As a result, you should carefully and specifically document any incident supporting your sexual harassment claim, including dates, places, times and possible witnesses. While you may think that you will vividly remember every detail, memories fade over time and are not always the most reliable means of recalling facts. You should also be careful to preserve any relevant emails, text messages, phone records, written correspondence, photographs or other pieces of evidence that support your claim. You should also note the identity of any witnesses to incidents of harassment.
2. Firmly Reject Any Unwelcome Behavior and Communicate that it is Offensive
In the event you are subjected to unwelcome sexual remarks or advances, you should make it very clear that the behavior at issue is unwelcome. You should firmly reject any unwelcome advances and communicate that the behavior is offensive to you. You should not “play along,” or downplay the incident in order to defuse an uncomfortable situation. Otherwise, you may be accused of welcoming or encouraging the offensive conduct.
3. Report All Incidents of Sexual Harassment
Many employers have policies with complaint procedures for employees to use to register complaints about sexual harassment and other forms of discrimination. Regardless of whether your employer has such a policy, however, it is also very important that you report any harassment to a supervisor or manager at work. In other words, even if your employer has not adopted such a policy, you should still complain about any harassment to an owner, supervisor or manager. You should also document your complaint in writing – as often times complaints are ignored or denied by the employer. While it may be very difficult to complain, it is an important step to put an end to the harassment and may be necessary to preserve your potential sexual harassment claim.
4. File a Charge of Discrimination with the EEOC or CCRD
An internal complaint may not resolve the situation – either because the harassment continues or the employer fails to take appropriate action against the harasser. If you have reported the harassment to your employer but are not satisfied with the handling of your complaint, or if you are unable to report it, you may file a Charge of Discrimination with the EEOC or Colorado Civil Rights Division (“CCRD”). The EEOC and CCRD are responsible for enforcing the laws against sexual harassment and will investigate your claim.
In addition, you must file a Charge of Discrimination with the EEOC or CCRD before pursuing a statutory claim in court. You must file your Charge of Discrimination within very specific time frames (300 days for the EEOC and 180 days for the CCRD). If you fail to file a timely Charge of Discrimination, you will lose your right to pursue a sexual harassment claim under Title VII and the Colorado Anti-Discrimination Act.
5. Consult with a Sexual Harassment Lawyer
Faced with an internal sexual harassment complaint or Charge of Discrimination, employers often seek legal advice from an experienced sexual harassment lawyer. For both employers and employees, there are critical legal options and strategic decisions that need to be made. Baird Quinn’s experienced sexual harassment attorneys are available to help make these decisions. Contact Us
The Remedies Available to a Victim of Sexual Harassment in Colorado
Employees may recover significant damages due to sexual harassment in the workplace – including lost wages and benefits, compensatory damages for emotional distress, and punitive damages. Damages for emotional distress and punitive damages are subject to certain caps depending on the size of the employer. An employee may also win the right to be reinstated to employment if he or she was terminated or may obtain an injunction to stop discriminatory employment practices, such as sexual harassment. A prevailing employee may also recover attorney fees and costs incurred in litigating claims of sexual harassment.
Sexual harassment may also give rise to state law tort claims that may lead to significant potential liability for an employer.
Protections Against Retaliation Due to Sexual Harassment Complaints
The law also prohibits an employer from retaliating against an employee for complaining about sexual harassment or for participating in the investigation or litigation of another employee’s sexual harassment allegations or case. You need not be the victim of sexual harassment to have a retaliation claim – you need only engage in protected activity.
Retaliation may take the form of tangible employment actions – such as discharge, loss of promotion opportunities, demotion or disciplinary action. In some cases, however, the retaliation is more subtle. The question is whether the employer has engaged in conduct that would likely dissuade a reasonable person from complaining about sexual harassment. For more information about the protections against retaliation and retaliation claims, see our retaliation page.
Denver’s Sexual Harassment Lawyers
Baird Quinn’s Colorado sexual harassment lawyers have significant experience representing clients in sexual harassment cases. Please feel free to contact our Denver sexual harassment lawyers to discuss any concerns about sexual harassment in the workplace. You may obtain additional information regarding our sexual harassment lawyers at the following link.