If you live in the Hudson Valley area, then you have probably noticed that instances of sexual harassment in the workplace have been in the news with an interesting twist: men are now speaking out as also being victims of this unfortunate practice that has historically disproportionately affected women.
How do you know if you are being sexually harassed at work?
We frequently get calls from potential clients asking what constitutes sexual harassment in the workplace. The answer is that it varies from situation to situation. Sometimes sexual harassment can happen in a way that is less forward than a slap or pinch on the buttocks. Sexual harassment can also happen more underhandedly, such as through the discussion of sexual activity or proclivities in your presence, the hanging of sexually charged photographs or posters on workplace walls that are visible to co-workers, or sexually crude “jokes” in your presence that offend you or make you feel uncomfortable.
To be actionable, sexual harassment must be sufficiently pervasive and severe to create a sexually hostile work environment and offend an average, similarly situated person.
For example, if you heard one crude joke in the office, that is not sufficient to create a sexually hostile work environment. However, if the crude jokes are made hourly or daily for an extended period of time, then they may rise to the level of pervasive and severe and may be actionable. There are also instances where courts have found that one act of physical touching or abuse is enough to be actionable sexual harassment, especially when the sexual touching or abuse was a quid-pro-quo for a favorable employment action or if it was followed by retaliation after it was refused.
Whatever the case may be, you need to alert the proper individuals immediately and in the proper way in order to protect your rights.
Who do you notify if you have been the victim of sexual harassment at work?
Your employer cannot protect you from sexual harassment if he or she is not aware of it, and such lack of knowledge will undoubtedly be your employer’s first defense against your potential lawsuit. Many people make the mistake of merely verbally complaining to the harasser or to a manager that has no hiring and firing authority in the workplace.
The best thing to do when you are being sexually harassed is to check your employee handbook to see if your employer has established a specific officer or human resources personnel to handle and process sexual harassment complaints. You need to immediately notify the person(s) identified in the employee handbook of the sexual harassment and your notice should be in writing. If you do not have an employee handbook, you should notify the supervisors that have authority to hire and fire employees.
If you are being sexually harassed, you should keep a journal with the date and time of all the instances that you have been harassed and the names of witnesses to each act of harassment as this will assist you in making a sexual harassment charge with your employer and with the Equal Employment Opportunity Commission (“EEOC”).
What do you do if your employer does not adequately address the sexual harassment?
You should contact an attorney immediately to discuss your options.
The first step in any discrimination case will be to file a charge of sexual harassment with the EEOC. You cannot file a Federal lawsuit based on sexual discrimination unless you have first filed a charge with the EEOC. An EEOC charge must be filed within 180 – 300 days of the last act of discrimination, depending on the case. It is best to hire an attorney to represent you in the drafting of the EEOC charge to be sure that your charge is timely and that it includes all of the applicable claims as your Federal lawsuit will be limited to the facts and claims alleged in your EEOC charge.
If you are not able to work out a settlement with your employer and/or harasser through the EEOC process of conciliation, the EEOC will issue you a “Right to Sue Letter” which will enable you to bring your claim to Federal Court.
If the sexual harassment is affecting you psychologically, make sure to obtain psychotherapy immediately and on a regular basis so that your mental trauma can be substantiated by your medical records. Also, any retaliation that you experience after reporting the sexual harassment should be well documented in your journal. For instance, if you suffer any adverse employment consequences shortly after making your sexual harassment complaint, such as being moved to a less desirable shift, getting demoted or fired, or if your work environment is altered in a way that negatively affects you, that may be retaliation for which you are entitled to recover under the Civil Rights Law.
If you think that you have been the victim of sexual harassment in the workplace, please seek legal representation.
Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law. She can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.