Sexual Harassment Claims

 

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I think I am being sexually harassed at work, how do I prove it?

 

There are two ways for you to make a sexual harassment claim: (1) 'quid pro quo' harassment or (2) 'hostile environment' harassment. "The terms 'quid pro quo' and 'hostile work environment' harassment serve to distinguish roughly between cases in which threats are carried out (quid pro quo) and cases in which threats are not carried out or are absent altogether (hostile work environment)."

 

What is Quid Pro Quo Harassment and how do I prove it?

 

Quid pro quo harassment exists where an employer conditions employment benefits upon whether or not the employee performs favors that are sexual in nature. This type of harassment occurs when a woman is, for example, fired or not promoted for failure to submit to her harasser's "advances, requests or conduct."

 

To successfully prove a claim for quid pro quo sexual harassment, you must show:
(1) You, the employee, are a member of a protected class;
(2) You were subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
(3) The harassment complained of was based on sex;
(4) Your submission to unwelcome advances was an express or implied condition for receiving job benefits, or that your refusal to submit to a supervisor's sexual demands resulted in tangible job detriment; and
(5) There is some basis for holding the employer liable.

 

Am I a member of a protected class?

 

Under Ohio's antidiscrimination law, women are a protected class.

 

What is unwelcome sexual harassment?

 

Unwelcome sexual harassment consists of behavior like sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature.

 

What does it mean for the harassment to be based on my sex?

 

Essentially, it is harassment that is brought on because of a person's sex, such as being a woman. Harassment because of sex is the essential element needed to bring a sexual harassment claim.

 

How do I prove that the unwelcome advance was a condition for receiving a tangible job benefit?

 

You can prove this element if you can establish that your refusal of sexual advances would or did result in your being fired, demoted, or not promoted. In one instance, a female employee was reprimanded by her supervisor for failing to complete a project in four days that would normally take 2-3 months. Prior to being assigned this unachievable task, she had refused to sleep with her supervisor while they were away on a business trip. The court decided that these facts could be enough to establish quid pro quo sexual harassment.

 

What is a tangible job benefit?

 

A tangible job benefit is a raise or a promotion, or something along these lines.

 

How do I show that there was some basis for holding my employer liable?

 

In an action for quid pro quo sexual harassment, your employer will be held responsible for the conduct of its supervisory employees, who have authority over hiring, advancement, dismissal and discipline of employees.

 

What is "Hostile Work Environment" sexual harassment and how do I prove it?

 

Hostile work environment harassment refers to situations where there is a pattern of harassing conduct or behavior, and such behavior unreasonably interferes with an individual's work environment by creating an intimidating, hostile, humiliating or sexually offensive work environment.

 

To successfully prove a claim of hostile-environment sexual harassment, you must show:(1) that the harassment was unwelcome;
(2) that the harassment was based on sex;
(3) that the harassing conduct was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment; and
(4) that either the harassment was committed by your supervisor, OR your employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

 

Please refer to subsections above for information on how to prove the first three elements of a hostile work environment case.

 

How do I show that the discriminatory conduct was sufficiently severe or pervasive to create a hostile work environment?

 

In order to establish a case for hostile work environment under sexual harassment, the alleged harassment has to be severe and pervasive enough to alter the terms and conditions of your employment. In reviewing your case, the court will look to the facts and surrounding circumstances in order to assess the work environment as a whole.

 

Mere inappropriate conduct, such as a co-worker saying something that is insulting, is not enough to establish a hostile work environment. In addition, isolated uncomfortable incidents in the workplace, including unwelcome touching by male co-workers and being told dirty jokes by male co-workers, may not be considered sexual harassment. Therefore, when building your case, you must consider if most people in the same situation would feel compelled to resign under similar circumstances.

 

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

 

Your employer may be held accountable for not responding adequately to a sexual harassment allegation within the workplace. Your employer's response to the claim has to be reasonable in light of the facts your employer knew or should have known, such as the alleged hostile behavior.

 

The best way to show that your employer knew of the conduct is by filing a complaint. After you file a complaint with your employer, it is your employer's responsibility to exercise reasonable care to prevent and correct the behavior. You also have the responsibility to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

 

My employer has fewer than four employees -- is there anything I can do?

 

Yes. In Ohio, there is both a statutory and common law cause of action for sexual harassment. The statute which prohibits sexual harassment by employers applies only to employers that have at least four employees. Therefore, if your employer has fewer than four employees, you cannot bring a statutory claim, but you may bring a common law tort claim which is not subject to the statutory restrictions.

 

In order to prove hostile work environment or quid pro quo sexual harassment under the common law claim, you must meet the requirements discussed above and also show that there was a past history of sexual harassment that the employer knew of or should have known about.

 

Can I file a claim against my boss/supervisor under Ohio law?

 

Yes. You can file a claim for sexual harassment against both your harassing supervisor on an individual basis and your employer on the basis that your employer knew about or should have known about the harassment but took no action. You may sue both because the Ohio anti-discrimination statute prevents acts of discrimination by any "employer," which includes any person acting directly or indirectly in the interest of the employer.

 

Can I bring a claim against my co-worker if he is not my boss or supervisor?

 

Yes. You can sue your employer for sexual harassment by a co-worker if you can show your employer knew or should have known of the conduct but failed to take action to stop the harassment. You can also sue co-workers directly, rather than in addition to your employer, for sexual harassment at work under Ohio's anti-discrimination statute.

 

I complained to my employer and they reprimanded the harasser. Can I still file a claim?

 

Under these circumstances, it would not be possible to file a successful claim against your employer because you will be unable to satisfy the requirement that your employer knew of, or should have known of the harassment, but failed to take action.

 

What if my harasser is also a woman?

 

You can file a claim for sexual harassment by another woman. Ohio's statutory prohibition against discrimination "because of sex" in terms or conditions of employment includes sexual harassment of any kind that meets the statutory requirements, including same-sex harassment. You must show that harassment occurred because of your sex in order to prove same sex harassment.

 

Is one incident of sexual harassment sufficient basis for a claim?

 

It depends. If you are filing a claim for hostile work environment sexual harassment, a single incident must be "particularly egregious" in order to establish a valid case. In one case, the Ohio court considered a sexual harassment claim for a single incident in which a salesperson made sexually explicit comments to a female employee in the presence of their supervisor. The comments were made both at a work function and at a sports bar following the function. The court held that the alleged failure to intervene on the part of the supervisor in this one instance was sufficiently egregious to establish an issue of fact as to whether the act constituted sexual harassment.

 

If you are filing a claim of quid pro quo sexual harassment, the incident of harassment must be extremely serious in order to constitute a valid claim. Off hand comments and isolated incidents are generally not sufficient to sustain a claim of quid pro quo sexual harassment unless there is some more serious conduct involved, such as physical touching.

 

What if the harassment has been going on for a long time? Can I still file a claim?

 

Yes. As long as there has been an incident of sexual harassment within six years of filing your claim, your claim will be valid. Sexual harassment claims have a six-year statute of limitations, which means that cases are barred from being filed if more than six years have passed since the initial incident of the harassment occurred. When reviewing your claim, the court may choose to consider acts that fall outside of the six-year statute of limitations period if they are part of a "continuing violation" (i.e. evidence of ongoing harassment), as opposed to isolated events.

 

Can I get damages for emotional distress?

 

Yes. However, emotional distress claims are considered separate suits from sexual harassment claims and are governed by Ohio tort (personal injury) law regulations. The elements of a sexual harassment claim and an intentional infliction of emotional distress claim are substantively different and conclusions relating to the liability of one do not transfer to another.

 

In order to establish intentional infliction of emotional distress under Ohio tort law, you must show that:(1) Your employer intended to cause emotional distress, or knew or should have known that actions taken would result in serious emotional distress; (2) Your employer's conduct was extreme and outrageous; (3) Your employer's actions proximately caused your psychic injury; and(4) The mental anguish you suffered was serious.

 

It is important to keep in mind that courts are generally wary of emotional distress claims. Ohio courts have held that an individual act of sexual discrimination, by itself, is insufficient to support an intentional infliction of emotional distress claim under Ohio law. Only rarely will offensive conduct reach the level necessary to support an Ohio law claim for intentional infliction of emotional distress.

 

What is emotional distress?

 

Emotional distress is an emotional injury that is both severe and debilitating, and includes injuries such as traumatically induced neurosis, psychosis, chronic depression, or phobia.

 

What is considered extreme and outrageous conduct?

 

Liability has been found only where the conduct has been so extreme in degree as to be regarded as "atrocious." Mere insults, threats, or annoyances would not qualify under this element.

 

How do I show that my employer's actions proximately caused my emotional injury?

 

The emotional harm you suffered as a result of your employer's harassment must be such that your employer might anticipate it as likely to happen.

 

How do I show that my mental anguish was serious?

 

Seriousness is shown if it is determined that most people would be unable to cope adequately with the mental distress caused by the circumstance.

 

What is the difference between sex discrimination and sexual harassment?

 

In Ohio, under R.C. §4112.02, "discrimination" includes subjecting an employee to sexual harassment. In other words, sexual harassment is a form of sex discrimination.

 

 

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