Sexual Harassment Claims

 

I think I am being sexually harassed at work.

 

It happened to me: A Real Life Story

 

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

 

The required elements you need to show, as a woman, to prove a quid pro quo claim of sexual harassment are:
1. you were subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors;
2. the harassment you complained of was based on sex;
3. your submission to the unwelcome advances was an express or implied condition for receiving job benefits or refusal of advances would result in termination; and
4. the existence of respondeat superior liability.

 

You must prove all of these elements to advance your claim.

 

The elements for a claim of hostile work environment sexual harassment include:
1) you were subjected to unwelcome sexual harassment;
2) the harassment you complained of was based on sex;
3) the harassment complained of affects a term, condition, or privilege of employment; and
4) your employer knew or should have known of the harassment and failed to take remedial action.

 

You must prove all of these elements to advance your claim.

 

What does "Quid Pro Quo" sexual harassment look like?

 

A quid pro quo claim literally means "something for something." Quid Pro Quo sexual harassment occurs when a supervisor behaves in a way or demands actions from an employee that forces an employee to decide between giving in to sexual demands or losing their job, losing job benefits or promotion, or otherwise suffering tangible job detriments.

 

What does "Hostile Work Environment" sexual harassment look like?

 

When the workplace is infused with intimidation, ridicule, and insult that is severe or pervasive enough to create a seriously uncomfortable or abusive working environment, then a discriminatory hostile environment case may be the issue. The conduct must be severe enough to create a work environment that a reasonable person would find hostile.

 

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

 

If your behavior has significantly changed, you have sought counseling, or you have been absent from work due to your uneasiness because of the harassment, you may be able to show that your ability to work was indeed affected.

 

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

 

Keep records! Note dates of harassment, specific language used, and ask other women if they are experiencing the same treatment. File a complaint through the proper channels at your work, and if none are provided, start documenting instances of harassment and go to your boss or your boss’s supervisor if you feel that your harassment is severe. The more documentation and facts you have to back you up, the better your case will be.

 

Can I file a claim against my boss/supervisor under the TCHRA?

 

Yes. The law is designed to ensure that women who are victims of sexual harassment can bring a claim against their employers for harassment, be it quid pro quo harassment by their boss/supervisor or hostile work environment harassment created by an employee/co-worker as a member of the company.

 

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

 

Yes. If you are considering filing suit against a supervisor, one method of this is respondeat superior, which translates to "let the master answer." That theory holds an employer liable for an employee’s actions committed during employment. Although quid pro quo claims usually are between an employee and his/her supervisor, the claim is not ruled out if you make a complaint of sexual harassment to a member of the company (be it the human resources department or your supervisor) and no action is taken. In this scenario, your claim would better be argued under hostile work environment.

 

I complained to my employer and it failed to act or appropriately reprimand the harasser. Can I still file a claim?

 

If your employer failed to take appropriate action once it learned of your harassment or your harassment continued or worsened after a reprimand and you notified your employer of the ongoing condition, you may still be eligible to file a claim.

 

What if my harasser is also a woman?

 

In Texas, if you are harassed by a member of the same sex, you can still bring a sexual harassment claim by showing a chain of factors similar to those used in male/female harassment cases. You should be able to show that: 1) you were subject to explicit or implicit proposals of sexual activity or; 2) the alleged harasser was motivated by general hostility to the presence of members of the same sex in the workplace. You may provide credible evidence that the alleged harasser is homosexual but please note that harassing conduct need not be motivated by sexual desire to support your claim. Sexual harassment may be reasonably found if a female victim is harassed in sex-specific and derogatory terms by another woman to the point that it is clear that the harasser is motivated by general hostility to women at work.

 

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

 

One incident is rarely sufficient for a claim. Generally, one incident, unless extremely heinous, does not qualify as sexual harassment. One Texas court stated "Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by reviewing all the circumstances; including the frequency of the conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance."

 

Can I get damages for emotional distress?

 

Emotional distress damages have been awarded but generally are a separate claim of the suit different from sexual harassment. Emotional distress comes with its own elements that must be met. Consult the Texas Workforce Commission for more information.

 

What is the difference between sex discrimination and sexual harassment?

 

Sexual harassment is often a part of sex discrimination. Sex discrimination encompasses many types of discrimination including harassment, pregnancy discrimination, unequal pay claims and disparate impact.

 

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

 

In a hostile environment claim only, your employer may be able to use what is called the "Ellerth/Faragher" affirmative defense. The defense has two prongs, it must prove that (1) the employer exercised reasonable care to prevent or correct promptly any such sexual harassment, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The court must determine whether the misconduct attributed to the supervisor constitutes severe or pervasive sexual harassment to establish the supervisor’s liability.

 

 


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