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It happened to me: A Real Life Story

 

What is sexual harassment?

 

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature.

 

 

What are the laws?

 

The federal law dealing with sexual harassment is found in Title VII of the Civil Rights Act of 1964.

There are no state laws in Georgia that deal directly with sexual harassment. Instead, lawsuits may be filed under the tort claims of assault, battery, and intentional infliction of emotional distress. Additionally, certain state laws allow employers to be held responsible for sexual harassment that occurs in the workplace.

 

 

Where is the law regarding Title VII sexual harassment found?

 

Title VII of the Civil Rights Act of 1964 does not specifically address sexual harassment as a type of discrimination. However, the Supreme Court expanded the application of Title VII to include sexual harassment lawsuits.

 

 

To whom does the federal law apply?

 

Title VII of the Civil Rights Act of 1964 is applicable to all public and private employers with at least 15 employees. There are a few exceptions, such as the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, any department or agency of the District of Columbia subject by statute to procedures of the competitive service, and a bona fide private membership club (other than a labor organization).

 

 

What is an employee under this law?

 

The term "employee" means any individual employed by an employer.

 

 

What is an employer under this law?

 

The term "employer" means a person engaged in an industry who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.

 

 

Are women a protected class under Title VII?

 

Yes, women are a protected class under Title VII.

 

 

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

 

To establish sexual harassment under Title VII, an employee must prove that she belongs to a protected group, she was subjected to unwelcome sexual harassment, the harassment was based on her sex, the harassment altered the terms and conditions of her employment, and there is a basis for holding her employer vicariously responsible.

 

The standard for determining whether the harassment affected a term, condition or privilege of employment amounts to a two-part test: 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. Hostile or abusive work environments can stem from physical and verbal harassment.

 

It is important to recognize that a mere insult which provokes offensive feelings in an employee does not sufficiently or necessarily implicate Title VII. Previous case law has said that the behavior must be outrageous and "so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers." Although there is not a set standard for what qualifies as sufficiently severe or pervasive, there must be a showing of extraordinarily outrageous behavior.

 

Courts have established a "reasonable woman" standard for sexual harassment cases because women, who are more often the victims of sexual crimes, have good reason to be more concerned with sexually charged words and actions. In sexual harassment cases, the judge would use separate standards to compare the response of female victims to male victims.

 

 

What can my employer do to deny my allegations?

 

Your employer will attempt to show a legitimate, nondiscriminatory reason for their allegedly discriminatory behavior.

 

 

Does it matter when the discrimination occurred?

 

Yes. A claim must be filed with the EEOC within 180 days after the sexual harassment occurred. The EEOC recommends contacting them promptly when discrimination is suspected.

 

 

Who enforces the law?

 

The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964.

 

 

How do I file a claim?

 

Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC. A charge may be filed by mail or in person at the nearest EEOC office. The complaint must include: (1) the complaining party's name, address, and telephone number;
(2) The name, address, and telephone number of the employer, employment agency, or union against which the claim is being made and the number of employees (or union members), if known;
(3) A short description of the alleged violation (the event that caused the complaining party to believe that his or her rights were violated);
(4) and The date(s) of the alleged violation(s).

 

If the individual bringing the charge receives a notice of "right to sue" from the EEOC, they may then file a lawsuit within 90 days. Also, 180 days after the charge was initially filed with the EEOC, the individual bringing the charge can request a notice of "right to sue" and may then bring suit within 90 days after receiving this notice.

 

 

Where is the law regarding sexual harassment in GA found?

 

There are no state laws that directly deal with sexual harassment. Instead, lawsuits can be brought under Georgia's tort laws that address assault and battery and intentional infliction of emotional distress.

 

 

What claims can sexual harassment charges be brought under?

 

With regards to sexual harassment, claims can be brought under assault and battery for lewd and obscene comments and gestures, sexual advances, and offensive touching.

 

 

How long do I have to bring a sexual harassment claim in the state?

 

Generally speaking, claims must be brought within two years after the sexual harassment occurs. If the claim is filed after the two years have elapsed, the claim will essentially be lost.

 

 

Does the size of my place of business matter? Does it matter how many employees there are?

 

Under state law in Georgia, the size of the business and number of employees have no affect on your ability to bring a claim of sexual harassment.

 

 

What must I prove to bring a claim Intentional Infliction of Emotional Distress in GA?

 

You may bring a claim of intentional infliction of emotional distress arising out of sexual harassment incidents. To show a claim of intentional infliction of emotional distress, you must show that:
(1) the defendant's behavior was willful and wanton or intentionally directed to harm the victim;
(2) the actions of the harasser must be sufficiently outrageous so to naturally humiliate, embarrass, frighten, or outrage the victim;
(3) the conduct caused mental suffering or wounded feelings or emotional upset or distress to the victim.

 

This can be difficult to prove. For example, in one case, an employee was not able to recover emotional distress damages for an employer's suspected negligence in allowing a co-worker's alleged sexual harassment of the employee to continue. This was because the employee alleged no physical injury or resulting monetary loss.

 

 

What is willful and wanton behavior?

 

Behavior is considered willful or wanton when there is an absence of care, proof of conscious indifference, or when a person acts with the knowledge that his conduct will result in injury to another person.

 

 

What is sufficiently outrageous conduct?

 

This does not include insults, threats, indignities, or annoyances, but must be regarded as atrocious and utterly intolerable. Mere tasteless, rude or insulting social conduct will not give rise to such a claim. Whether the conduct is sufficiently outrageous will be decided by a jury, but some factors to take into consideration include the existence of a relationship in which one person has control over another, such as a supervisor-employee relationship, the actor's awareness of the victim's particular susceptibility, and the severity of the resultant harm.

 

 

What is emotional distress?

 

Emotional distress includes all highly unpleasant mental reactions such as horror, fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.

 

 

What must I prove to bring a claim of battery in GA?

 

Women may also bring a claim of battery arising out of sexual harassment incidents. Any unlawful touching is a physical injury to the person and is actionable. Generally speaking, an "unlawful" touching is one that is "offensive." "Offensive" touching is defined as that which proceeds from anger, rudeness, or lust and would be offensive to an ordinary person. A cause of action "can be supported by even minimal touching." Even if the defendant did not touch any "private area" of the woman's body, courts may still conclude that the touching was offensive when the touching occurred within the context of an employee-supervisor relationship, where it is especially difficult for the plaintiff to protect herself.

 

 

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

 

Yes, there are laws that victims of sexual harassment can use to hold their employer responsible for harassment that occurred in the workplace.

The state statute relevant to employer liability is the Official Code of Georgia, Section 51-1-12, otherwise referred to as O.C.G.A § 51-1-12. Specifically, O.C.G.A. § 51-1-12 states that an employer is responsible for the conduct of his employees if he knew or should have known about his employees' actions.

Furthermore, O.C.G.A. § 10-6-1 holds employers accountable for the actions of their employees. An employer is responsible for actions that he expressly or implicitly authorizes, meaning he legally approved the harassment.

 

 

My employer has to "approve" the harassment to be liable? How do I prove that?

 

O.C.G.A. § 10-6-52 says that the employer's after-the-fact approval of the harassment counts as though it was originally authorized. Written authorization is the obvious example of express consent. Payment or reimbursement related to the harassment can also be considered approval. Approval of the harassment may even be implied through the silence of the employer. An employer cannot retract his approval.

O.C.G.A. § 10-6-61 holds your employer liable if he directly assents to or orders the harassment as long as it damages your health, reputation or property. Once again, the order can be implied or inferred from his conduct, especially when the harassment occurs within the "scope of the business."

 

 

I was harassed at work. Does that count as being "in the scope of employment"?

 

The idea behind 'scope of employment' is that your employer is in some way benefiting from the harassment. This expands his liability to acts he should have known about.

 

An employer cannot, even with approval, be held liable for an employee's harassment if it is entirely disconnected from the business. For example, in one case, an employer was not held responsible for the alleged sexual harassment by the employee's co-worker, given that the co-worker's alleged actions were committed for purely personal reasons unrelated to the employer's business.

 

The general rule is that sexual harassment by a supervisor is not within the scope of employment. In one case, the employer could not be responsible for the suspected sexual harassment of the plaintiff because the alleged acts of sexual harassment were not committed in order to further the employer's business and hence, were outside the scope of the supervisor's employment. In a case where the employer was found responsible, it was because he fired the plaintiff and retained the supervisor after learning about the harassment.

 

Although a supervisor's sexual harassment is outside the scope of employment when the conduct was for personal reasons, employers can be held responsible, when their own negligence is the cause of harassment. The employer is considered negligent if he knew or should have known about the conduct and failed to stop it.

 

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