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Monday, December 11, 2017

Caution: Sexual Harassment in the Workplace -

Given the many high profile cases in the media over the past several months, it is crucial for any business to understand its responsibility to prevent sexual harassment in the workplace. However, most people do not know what constitutes sexual harassment. Some assume it applies only to behavior between people of the opposite sex. However, this is not true...sexual harassment can be found in same sex behavior. 

Generally, sexual harassment is deemed to be a form of sex discrimination under Title VII of the Civil Rights of 1964 (Title VII), and most states have far stricter laws in place designed to prevent harassment.

There are two types of sexual harassment: quid pro quo ("this for that") and hostile work environment.

  • Quid pro quo - This occurs when an employer, most often a person in a position of authority, demands sexual favors in exchange for a job or any other benefit of employment including promotions, bonuses and raises. An employee who is fired, disciplined, or given a poor performance evaluation, for refusing a sexual advance may be the victim of this form of harassment.
  • Hostile work environment - This involves an employee being subjected to a pattern of unwelcome conduct, such as comments or visual displays, that is severe or pervasive enough to create a distressing work environment and alter the conditions of employment.

Under federal law and most (but not all) state statutes, In order to have grounds for a claim the employee must demonstrate that he or she believed the conduct was offensive or hostile. It is also necessary to show that a reasonable person in the same position would believe the conduct was hostile. Finally, the employee must prove that he or she complained to a supervisor or someone else in a position of authority and that the employer failed to take action to stop the harassment.

Before filing a federal lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC). This is referred to as "exhausting administrative remedies" and is required if the employee wants to avail him or herself of protections afforded by federal law. If the matter is not resolved at the EEOC level, a "right to sue" letter is issued and a civil lawsuit can then be filed.

State laws may differ. For example, in New Jersey under the Law Against Discrimination (LAD), an employee can file a sexual harassment lawsuit in state court without first filing a complaint with the New Jersey Division on Civil Rights. Attorneys often recommend doing so as the remedies available under the NJ LAD may be better than under federal law or the employer may not be covered by federal law because it has too few employees.

In short, all employees have a right to a workplace that is free from sexual harassment. It is crucial for any business to establish policies to prevent such conduct, and institute procedures to address any employee concerns. Ultimately sexual harassment is bad for business because it can create a toxic work environment that adversely impacts employee morale. Moreover, a lawsuit can not only lead to a costly settlement, but also damage a company's reputation.

If you believe you are the victim of sexual harassment or any form of discrimination on the basis of your gender, gender identity, or sexual orientation, do not wait and hope "it will go away" on its own. Contact an employment law firm, such as The Law Office of Randall P. Brett, to discuss your situation and what can be done.

If you are an employer, do not tolerate any form of harassment, whether sexual or not (including bullying). Contact an experienced employment law firm, such as The Law Office of Randall P. Brett, to review your policies and procedures and provide guidance regarding permissible supervisor behavior and management responsibilities. 

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