Recent Hollywood celebrity harassment stories related to Harvey Weinstein have hit the news, but the issue of workplace sexual harassment is not new. Rather, workplace sexual harassment is quite common and happens on a daily basis. Even President Donald Trump has been accused of workplace sexual harassment in the past. Additionally, investigations by human resources departments into allegations of workplace sexual harassment are often either slow or non-probing. Rose McGowan has called out Jeff Bezos on Twitter over his company’s failure to investigate internal sexual harassment, but the Weinstein scandal and subsequent cover-up is largely a microcosm of the larger issue.
Two recent twitter hashtags are telling about the scope of sexual harassment trends nationally. #womenboycotttwitter has become a recent rallying cry for the bullying of female employees (and women in general) over social media. Similarly, #yesallwomen, a reversal to the popular#yesallmen, has seen a recent revival given that Rose McGowan initially coined the hashtag. These hashtags represent the broader issue of chronic workplace sexual harassment that has infected the nation for decades. The celebrity story’s recent publicity is notable for bringing light to the issue, but both men and women should take the time to examine sexual harassment as a whole.
In general, sexual harassment is widespread and new victims are created on a daily basis. If you have been sexually harassed in the workplace, you should not delay taking immediate action to preserve your legal rights. Sexual harassment in the workplace is illegal and there are a number of steps you can take to help make your legal claims easier to prove in court.
Actionable workplace sexual harassment can occur in two instances: (1) quid pro quo sexual harassment and (2) hostile work environment sexual harassment. Quid pro quo sexual harassment is the type of sexual harassment that most people think of as illegal. Quid pro quo sexual harassment occurs when an employee is subject to unwelcome sexual conduct, and her reaction to the conduct is then used as the basis for decisions affecting the compensation, terms, conditions, or privileges of her employment. In other words, the employee must establish that a tangible job benefit or privilege was conditioned on an employee’s submission to sexual blackmail and that adverse consequences followed from the employee’s refusal. The issue in a quid pro quo case is whether the supervisor has expressly or tacitly linked tangible job benefits to the acceptance or rejection of sexual advances. While overt requests for sexual favors are of course prohibited, so too are implicit sexual pressures and harassing conduct.Hostile work environment sexual harassment occurs when the workplace is permeated with sexually discriminatory and offensive comments and actions that are sufficiently severe or pervasive to alter the conditions of the employee’s work environment. For example, frequent lewd jokes or emails containing pornographic images can create a hostile environment. Sexual harassment claims cannot be initiated simply because an employee finds one particular comment or joke offensive. There must be a continued pattern of workplace harassment.
As discussed above, internal reporting procedures are a mixed bag. Often, human resources departments work at a very slow and clunky pace; however, they can be helpful in many instances. Human resources departments can investigate sexual harassment claims and quickly resolve them by either firing the offending employee or creating some other resolution. Human resources may not always be so effective, however. This is particularly true when sexual harassment allegations are made against high-ranking figures within the company. Regardless of the effectiveness of human resources departments, they are also a necessary evil. Additionally, if a company does not have a human resources department, written complaints of sexual harassment should be made to managers, supervisors or owners.In fact, two U.S. Supreme Court decisions addressing hostile work environment sexual harassment, Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, make reporting workplace sexual harassment somewhat mandatory. These cases combined give employers a legal defense known as the Faragher/Ellerth defense which applies where an employer has a sexual harassment policy. Under the Faragher/Ellerthdefense, an employer is not liable for sexual harassment in the workplace where the harassed employee unreasonable failed to utilize the employer’s sexual harassment complaint procedure. The defense is not absolute, and it only applies where the anti-harassment policy is regularly enforced and the employee was not fired as a result of the harassment. However, it is always a safe bet to report the sexual harassment pursuant to the employer’s policy just in case the Faragher/Ellerth defense may apply.
One of the key problems with most workplace sexual harassment lawsuits is proof. It is common for harassed employees to delete disgusting emails or fail to keep notes about what occurred. Unfortunately, any lawsuit relies on evidence to prove that the improper harassment occurred. As a result, sexual harassment victims must be diligent about preserving evidence. In addition to not destroying evidence, finding new evidence is also important. For example, if any co-workers witnessed the harassment, the victim should make sure to interview his or her co-workers to see if they can provide more information.
Often, there may not be any hard evidence of workplace harassment, and the dispute may simply involve he-said/she-said allegations. When this lack of evidence scenario occurs, the best thing that the victim can do is write down word-for-word everything that happened and begin to keep a diary of any future harassment incidents. Victim documentation is not as good as eyewitness testimony or incriminating emails, but it is a good place to start. Most juries also have a tendency of wanting to believe victims. When a victim comes prepared, juries are more likely to be receptive. Unlike criminal lawsuits, the civil standard of proof is “preponderance of the evidence” (meaning which side is more believable), not “beyond reasonable doubt.” This means any additional evidence could tip the scales of justice.
Employment law is a complicated field and the filing procedures and deadlines create a legal morass that is very difficult for a non-lawyer to navigate. Our law firm is focused on representing victims of discrimination and sexual harassment in the workplace. If you believe that you have been sexually harassed at work in New York or New Jersey, please call the Law Office of Yuriy Moshes for a free consultation.