Sexual Harassment

 

It Happened to Me: Sexual Harassment

 

Where is the law regarding sexual harassment practices in Maryland found?

 

The Maryland Fair Employment Practices Act (FEPA) and Maryland common law provide a legal basis for sexual harassment claims and suits. Maryland common law provides a basis for damages through tort law. Title VII of the Civil Rights Act of 1964 also provides a basis for claims. FEPA does not give you the right to sue for employment discrimination directly. Suits are normally brought under Maryland law as well as Title VII or under Title VII alone.

 

Does the Maryland Fair Employment Practices Act apply to my employer?

 

The Maryland Fair Employment Practices Act applies to almost all Maryland employers, employment agencies, and labor organizations. This law does not cover private membership clubs (other than labor unions) and elected officials. It also does not include religious corporations, associations, educational institutions or societies with respect to the employment of individuals of a particular religion or sexual orientation to perform its activities.

 

What is sexual harassment?

 

Maryland law uses the same definition of sexual harassment as Title VII uses. Sexual harassment is any behavior of a sexual nature that affects your ability to perform your job or creates a hostile or intimidating working environment or submission or rejection of sexual conduct is used as a basis for employment decisions. It is sexual pressure or sexual attention of any kind in a work place. This includes unwelcome sexual advances, requests for sexual favors, unnecessary touching, and demeaning, crude or offensive language.

 

Who enforces sexual harassment claims brought under the Maryland Fair Employment Practices Act?

 

The Maryland Commission on Human Relations (MCHR) enforces state laws dealing with discrimination in employment, including sexual harassment.

 

Does it matter when I suffered the sexual harassment?

 

The claim must be filed with the MCHR within six months of the date that the last discriminatory act or event at issue took place.

 

How does Maryland classify sexual harassment?

 

Maryland courts discuss the two types of sexual harassment expressed by the U.S. Supreme Court: quid pro quo and hostile work environment. The first type of sexual harassment, quid pro quo, can be established when the employee's adverse reaction to the sexual harassment is used as the basis for decisions affecting compensation, terms, conditions or privileges of employment. The second type of sexual harassment, hostile work environment, need not include direct threats, physical touching, or tangible factors, but does include unfulfilled threats by a supervisor and severe or pervasive conduct.

 

How do I determine which type of sexual harassment I have experienced?

 

If a tangible employment action has resulted from the sexual harassment, then the employee can bring a claim for quid pro quo sexual harassment. If no tangible employment action has occurred as a result of the sexual harassment, the employee can instead bring a claim for hostile work environment.

 

What are the necessary elements of a case of quid pro quo sexual harassment?

 

The necessary elements of a claim of quid pro quo sexual harassment are as follows:
(1) the employee belongs to a protected group;
(2) the employee was subject to unwelcome sexual harassment;
(3) the harassment complained of was based on sex;
(4) plaintiff's reaction to the harassment affected tangible aspects of compensation; terms, conditions, or privileges of employment; and
(5) the employer knew or should have known of the harassment and took no effective remedial action (unnecessary when the harasser is the employer or employer's supervisor).

 

What are the necessary elements of a case of hostile work environment sexual harassment?

 

The necessary elements of a claim of hostile work environment sexual harassment are as follows:
(1) plaintiff was subject to unwelcome sexual harassment;
(2) harassment complained of was based upon sex;
(3) harassment complained of was sufficiently pervasive or severe to create an abusive working environment; and
(4) defendants knew or should have known of harassment and failed to take prompt, effective remedial action.

 

Does it matter what type of sexual harassment I have experienced?

 

Generally, no. Both Title VII and Maryland law allow recovery for sexual harassment regardless of whether it is hostile work environment or quid pro quo.

There is an exception, in that if you experience quid pro quo sexual harassment, you may also have a tort claim for abusive discharge, whereas you would not for sexual harassment based upon hostile work environment.

 

What is a tort?

 

A tort is a physical, emotional, or economic injury that a court will recognize and award damages for. Common examples include personal injury caused by medical malpractice, intention infliction of emotional distress, or slander. Maryland tort law may cover some forms of sex discrimination.

 

What rights do I have under Maryland tort law?

 

Sexual harassment can, and often does, include conduct that is covered by tort law. For example, if an employer touched you inappropriately, you could sue for battery. Libel, slander, invasion of privacy and intentional infliction of emotional distress commonly arise in a sexual harassment context. However, there are other torts that may occur in a sexual harassment context.

 

"Abusive discharge" is a tort that is very important to understand in the context of Maryland employment discrimination.

 

What is abusive discharge?

 

Abusive discharge is a tort action someone can bring if they were fired for a reason that is contrary to stated public policy. However, abusive discharge is limited to situations in which there is inadequate remedy under existing employment laws.

 

So how does abusive discharge apply to sexual harassment?

 

Both Title VII and the substantive portions Maryland Fair Employment Practices Act (FEPA) only cover employers with more than 15 employees. But the courts have held that the statement of purpose in the FEPA clarifies that any form of sex discrimination in employment is contrary to Maryland public policy. This gives you the right to sue your employer for sex discrimination if you work at business with less than 15 employees.

 

Abusive discharge also applies to some quid pro quo sexual harassment, specifically. When continued employment is conditioned on performing sexual favors, the courts have held it is tantamount to requesting an employee become a prostitute. As prostitution is a crime under Maryland law, firing someone for not accommodating this request is contrary to public policy.

 

This does not mean that you cannot file a claim under Title VII or the FEPA if you experience quid pro quo sexual harassment, and it is probably to your advantage to do so. If you have waited too long to file a claim under Title VII or the FEPA, you may still be able to sue for abusive discharge.

 

What are the time limits to file a lawsuit based on tort law?

 

Claims based on assault, libel, and slander must be filed within one year of the incident occurring. The time limit is three years for all other torts that could be encountered in a sex discrimination context, including abusive discharge.

 

It is important to note that while they are often discussed together, assault and battery are separate causes of action. Battery is the intentional, unwanted, offensive touching of one by another, and assault is placing someone in immediate apprehension of a harmful contact. The statute of limitations for battery is three years.

 

Does the harasser have to be my boss?

 

No. The harasser does not have to be your superior. Coworkers, customers, and vendors are also not allowed to sexually harass you.

 

If someone who is not your employer or supervisor harasses you, your employer can be liable for the sexual harassment if the employer allows the behavior to occur. This is done through a legal theory called Respondeat superior, which holds that an employer is responsible for an employee's wrongful conduct committed within the scope of their employment. To prove your employer's liability, you must show that the employer knew or should have known of the hostile environment and failed to end it.

 

In cases of sexual harassment, this is very important. Employers are liable for sexual harassment committed by others in the course of an employee's employment if the employer did not exercise reasonable care to prevent the harassment.

 

What if I'm not the target of the harassment?

 

The victim of sexual harassment does not have to be the object of the harassment, just someone affected by the offensive conduct. An environment can be hostile if you are witnessing others being harassed but are not harassed yourself.

 

How do I prove that my employer knew what was going on?

 

To be successful, you must be as detail as possible and produce specific facts.File a complaint with your employer when any sexual harassment occurs. You should take advantage of any complaint procedures your employer offers;Inform the harasser directly that you want them to stop and will pursue further action if they do not; and

 

Keep records of all incidents with names and dates, and keep your supervisor or human resources representative aware of any incidents that you feel constitute sexual harassment.

 

Does the person harassing me have to be a man?

 

No. The victim of sexual harassment does not have to be of the opposite sex.

 

What must I prove to win my case?

 

A person must prove that:
(1) he or she was subjected to unwelcome sexual harassment;
(2) the harassment was based on his or her sex;
(3) the harassment altered the terms and conditions of employment; and
(4) the harm must be imputable to the employer.

 

The harassment must be "sufficiently severe or pervasive" to create a work environment that a reasonable person would find hostile or abusive and the employee must have actually found the work environment to be hostile or abusive.

 

What could my employer do to deny my allegations, and how do I respond to its denials?

 

Your employer may attempt to show a legitimate, nondiscriminatory reason for their allegedly discriminatory behavior or that the discrimination did not happen. The agents at the EEOC are very experienced in helping a court see through attempted cover-ups and denials. If you are being discriminated against, the EEOC will assess the strengths and weaknesses of your case.

 

How do I go about filing a claim for sexual harassment?

 

See How do I File a Claim for more information.

 

What are some other online resources I can look at?

 

For information about filing state claims, see the Maryland Commission on Human Relations

For information about filing federal claims, see The Equal Employment Opportunity Commission

 

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