Sexual Harassment

 

It Happened to Me: Sexual Harassment

 

What is sexual harassment?

 

Sexual harassment is behavior of a sexual nature that affects your ability to perform your job or creates a hostile or intimidating working environment. Types of behavior that can constitute sexual harassment include unwelcome sexual advances; requests for sexual favors; and any other sexual, verbal, or physical conduct.

 

Does the person harassing me have to be a man?

 

The victim of sexual harassment does not have to be of the opposite sex of his or her harasser.

 

Does the harasser have to be my boss? Do they have to harass me directly?

 

The harasser does not have to be a superior, but can be a coworker. The victim does not have to be the object of the harassment, just someone affected by the offensive conduct.

 

What is the difference between sexual harassment and sex discrimination?

 

Claims of sexual harassment may in some cases accompany other types of discrimination covered by Title VII. Sexual harassment refers to specific types of conduct that specifically affect women in their jobs or create a hostile working environment, while sex discrimination covered by Title VII covers all discriminatory conduct relating to sex in the workplace. Sex discrimination is a range of behavior that includes sexual harassment and pregnancy discrimination, unequal pay, etc.

 

Is there a state law in Mississippi that protects against sexual harassment?

 

At this time, Mississippi does not have a law specifically outlawing sexual harassment. If you are interested in bringing a sexual harassment claim, your best bet is to file a complaint with the EEOC and to pursue your options under federal law.

 

What are the federal laws?

 

Sexual harassment is covered by Title VII of the Civil Rights Act of 1964. Although Title VII does not explicitly discuss sexual harassment, the Supreme Court has found that sexual harassment constitutes sex discrimination under Title VII.

 

What is illegal?

 

Any behavior of a sexual nature that affects your ability to perform your job or creates a hostile or intimidating working environment is illegal. Specifically, this behavior can include unwelcome sexual advances; requests for sexual favors; and any other sexual, verbal, or physical conduct.

 

How can I bring a federal claim for sexual harassment under Title VII?

 

The first step in bringing a sexual harassment case under Title VII involves filing a charge with the EEOC. See, How do I File a Claim for more information.

 

All laws enforced by the EEOC require you to file a charge before you are allowed to bring a private lawsuit. The EEOC will investigate your claim and attempt to work with your employer to resolve the discrimination. In addition, they may decide to sue your employer, or they will give you permission to sue, in the form of a 'right to sue' letter. To learn more about the procedure for bringing a case, see How do I File a Claim.

 

To whom does the federal law apply?

 

Title VII applies to public and private employers with at least 15 employees. Limited exceptions apply. Title VII prohibits intentional discrimination and discriminatory practices on the basis of race, color, national origin, religion or sex.

 

Who enforces the law?

 

The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

 

Does it matter when the discrimination occurred?

 

Yes. You must file a claim with the EEOC within 180 days of the conduct. The EEOC strongly recommends that you contact them as soon as you suspect that you may be the victim of sexual harassment.

 

What must I show in order to bring a claim under Title VII?

 

To prove sexual harassment under Title VII, you must show that:

(1) you belong to a protected group;

(2) you have been subjected to unwelcome sexual harassment;

(3) the harassment was based on your sex;

(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of your employment and create a discriminatorily abusive working environment; and

(5) you can prove your employer is liable under the doctrine of respondeat superior. (see below for explanation)

 

In addition, you must prove one or the other of two specific causes of action:

(1) quid pro quo sexual harassment; or

(2) hostile work environment

(See below for definitions of these two types of sexual harassment).

 

What is 'quid pro quo' sexual harassment?

 

Quid pro quo is Latin for "something for something." It is defined as "an action or thing that is exchanged for another action or thing of more or less equal value, a substitute." Quid pro quo sexual harassment can be shown when the employee's reaction to the sexual harassment was used as the basis for decisions affecting compensation, terms, conditions or privileges of employment.

 

What is hostile work environment sexual harassment?

 

A hostile work environment is a workplace filled with intimidation, insult and ridicule that can change the conditions of a person's job and create an abusive work environment. A hostile work environment does not have to cause psychological or emotional distress. One only needs to prove the environment in the workplace was severe enough to detract from job performance, cause people to contemplate leaving their jobs, and prevent employees from advancing in the company.

 

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

 

The difference between these two claims has to do with whether or not the employee has experienced a 'tangible employment action.' A tangible employment action "requires an official act of the enterprise, a company act," such as "hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Courts have also defined this 'tangible action' as an economic effect or consequence on the employee because of the sexual harassment.

 

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.

 

How do I establish a case of quid pro quo sexual harassment?

 

In order to prove a case of quid pro quo sexual harassment, you must show:

(1) you belong to a protected group (under Title VII, women are a protected group)

(2) you were subject to unwelcome sexual harassment;

(3) the harassment you experienced was based upon sex;

(4) your reaction to harassment affected tangible aspects of your compensation, terms, conditions, or privileges of employment; and

(5) your employer knew or should have known of the harassment and failed to take prompt action to fix it.

In order to prevail on this claim, it is also helpful to attempt to show a strong connection between the sexual harassment conduct and the job detriment you experienced.

 

How do I establish a case of hostile work environment sexual harassment?

 

One only needs to prove the environment in the workplace was severe enough to detract from job performance, cause people to contemplate leaving their jobs, and prevent employees from advancing in the company. In evaluating claims for hostile work environment, the court will look at the employer's overall conduct and the circumstances of the situation.

 

The courts use various tests to establish a hostile working environment. You will most likely be required to prove:

(1) that you suffered intentional discrimination due to sex;

(2) the discrimination was pervasive and regular;

(3) the discrimination detrimentally affected you;

(4) the discrimination you experienced would detrimentally affect a reasonable person of the same sex in that position; and

(5) respondeat superior liability exists, meaning in effect that your employer did not take adequate steps to prevent the discrimination from occurring (see below for definition and how to prove this).

 

In addition, when evaluating the environment of the workplace, one must consider all the circumstances. Some examples of evidence that will help you prove your claim of a hostile work environment include:

(1) frequency of the discriminatory conduct;

(2) severity of the conduct;

(3) whether the conduct is physically threatening or humiliating;

(4) whether it is merely an offensive utterance; and

(5) whether it reasonably interferes with an employees work performance.

 

The courts do not require psychological harm, but they may consider it in determining whether an abusive environment exists. While all these factors are relevant, no single factor is required to prove a hostile work environment.

 

What is respondeat superior?

 

Respondeat superior is Latin for "Let the superior make answer." It is the legal doctrine that holds that an employer is responsible for an employee's wrongful conduct committed within the scope of their employment.

 

In cases of sexual harassment, this is very important. Employers are liable for sexual harassment committed by employees if the employer did not exercise reasonable care to prevent the harassment. Thus, part of proving the prima facie case for hostile work environment includes showing that the conduct was within the scope of the harasser's employment, making your employer company liable for the harassment under the doctrine of respondeat superior.

 

Can I show that my employer knew what was going on?

 

(1) File a complaint with your employer when any sexual harassment occurs. You should take advantage of any complaint procedures your employer offers.

(2) Inform the harasser directly that you want him or her to stop and will pursue further action if he or she does not.

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

 

What can my employer do to deny my allegations?

 

Your employer may attempt to prove that you were not sexually harassed, or there was a legitimate reason for the conduct that does not violate the law.

The courts have also ruled that employers may use "affirmative defenses" to claim that, even though harassment occurred, the employer is not legally responsible. If the employer can prove that it took sufficient steps to prevent sexual harassment or that it could not have known about the conduct, the employer will not be held liable for the behavior of the employee engaging in sexual harassment. Additionally, the employer can try to prove that:

(1) the employer exercised reasonable care to prevent sexually harassing behavior; and

(2) that the employee unreasonably failed to take advantage of opportunities provided by the employer to avoid harm.

 

How do I show that this conduct affected my ability to work?

 

Keep records. Make sure to document the events in question and any changes in your behavior or output at work. In addition, if you have sought counseling, missed work, or had to quit your job because of the harassment, keep records. You will be able to offer this evidence in court.

 

I told my boss about the harassment and he did nothing. Can I hold him liable?

 

Your boss's inaction can serve as evidence to establish the liability of your employer company. Keep records and document these incidents in your EEOC complaint.

 

Can my behavior affect my ability to win a claim for sexual harassment?

 

Yes. The courts have ruled that many factors can reduce your ability to win a sexual harassment suit against your employer. Some factors to consider include your voluntary behavior and your general conduct in the workplace. These facts are very case specific and vary from situation to situation. For instance, the courts have ruled that it is against the aims of Title VII to defend sexual harassment on the basis of the conduct outside of work of the person being harassed.

 

One example of this involves a case in which the court had evidence that the victim willingly participated in crude language and sexual conduct in her workplace. Additionally, she failed to tell any of her coworkers that she found the harassment to be unwelcome or upsetting and did not ask them to stop. The court found that her behavior was enough not to hold her employer liable for the sexual harassment.

 

This case illustrates the importance of speaking up when you experience conduct that may be sexual harassment. Notify your supervisor or employer, and ask the person doing the offensive conduct to stop.

 

What Mississippi laws can help?

 

In Mississippi, you can file claims for intentional infliction of emotional distress, assault, or negligent supervision. These claims are available under Mississippi tort law.

 

What's a tort?

 

A tort is a wrong that can form the basis of a civil lawsuit. Examples include complaints such as battery (touching someone without consent), intentional infliction of emotional distress (recklessly causing someone emotional harm), or stalking.

 

How long do I have to bring a state claim?

 

In Mississippi, the statute of limitations for tort actions is one year. Keep in mind that for complaints under federal law, you have only 180 days to file a charge with the EEOC from the date of the alleged incident.

 

If I quit my job due to a hostile working environment, can I collect unemployment?

 

Yes. The Mississippi Supreme Court has stated that sexual harassment is a legitimate reason to voluntarily leave your job in the context of unemployment benefits. In one such situation, a woman complained of sexual harassment to her employer, but the conduct intensified until she was forced to quit her job. Because she had evidence of the sexual harassment and had complained to her employer, the court ruled that she could collect unemployment benefits.

 

What must I prove to bring a claim intentional infliction of emotional distress in Mississippi?

 

In Mississippi, it is not likely that you will be able to win a claim for intentional infliction of emotional distress (IIED). In order to win a claim of IIED you must show:

 

(1) you were subjected to conduct by your employer's employees that was so outrageous in character, and extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community;

(2) the conduct proximately caused you severe emotional distress;

(3) the employer intended to inflict severe emotional distress or knew or was substantially certain that severe emotional distress would result; and

(4) the employees who harassed you were acting in the course and scope of their employment, and the employer ratified their conduct.

 

IIED is very difficult to prove. The most important element is proving that the conduct was extreme and outrageous.

What must I prove to bring a claim of assault?

 

In order to prove a coworker or your employer assaulted you, you must prove:

(1) the person attempted to cause or purposely, knowingly or recklessly caused you bodily injury; or

(2) the person attempted, by physical threat, to make you fear immediate bodily harm.

What is negligent supervision?

 

An employer is guilty of negligent supervision when he does not properly supervise or train his employees to properly carry out their jobs. You can bring a claim for negligent supervision resulting in sexual harassment against your employer, but you may have to resolve the claim through Worker's Compensation as opposed to a lawsuit.