Sexual harassment is an unfortunate yet pervasive concern affecting many organizations. No one goes on the record saying they advocate for it, but many institutions, unwittingly or otherwise, uphold systems that perpetuate this type of misconduct. Federal sexual harassment laws cover companies with 15 or more employees, and states have more specific anti-harassment laws which can cover smaller companies. Individuals who have concerns regarding sexual harassment should consider the following questions before lodging a formal complaint.
Is This Conduct A Reasonable Person Finds Offensive?
Sexual harassment consists of gender-based and inappropriate acts or advances. Physical and oral conduct that creates a hostile work environment can also fall under this type of harassment. However, you cannot construe all inappropriate or offensive conduct as sexual harassment. For instance, suppose an employee keeps inviting his co-worker to socialize after office hours. The colleague may or may not find these invitations welcome. Although potentially a breach of boundaries, these invitations are not necessarily sexual advances, especially if a third party might regard these as polite gestures.
Are The Actions Severe or Pervasive?
If outsiders can reason out that the actions are indeed offensive, the harassing conduct must also be frequent, persistent, or widespread. Daily encounters with a superior who tells a subordinate that he or she is “hot,” for example, violates both criteria. However, a body deciding on a case can still consider one-off events as harassment, especially if they are egregious. An example would be a supervisor or co-worker sexually assaulting a colleague.
An office rife with offensive visuals, comments, and conduct can also be a hostile work environment. Vulgar posters, dirty jokes, sexual innuendo, nudity, and simulation of sex acts fall under actions that create a hostile work environment.
Is The Alleged Offender In A Position Of Authority?
Sexual harassment laws in companies often impose strict guidelines on persons of authority. When supervisors or managers harass subordinates, their employer is liable for the harassment. This is true even if the employer has no knowledge of the incident or could not have stopped it. When co-workers harass peers, though, employers need to be notified of the harassment so they can address it appropriately before being held responsible.
Is the Conduct Truly Offensive Or Unwelcome?
If the complainant engaged in sexual banter or voluntarily participated in the conduct they complained about, they might find it difficult to prove that the conduct was unwelcome. Lawyers might ask how they responded to the alleged harasser. They might also ask if the complainant informed others of the harassment, whether to a manager or the alleged offender.
Does The Complainant Have Proper Documentation?
Complainants need evidence that they reported harassment, including any reports, letters, notes, or emails about the incident. Reports or instances of escalation to managers also need documentation. If the harassment came from a manager, the complainants could give such documentation to their lawyer. Names of witnesses or other targets could also help the lawyer build a case.
How Has The Complainant Suffered?
A complainant who loses pay, gets a demotion, or otherwise suffers a financial or career loss because of the harassment might include this information in their complaint. Losses suffered due to the harassment can be grounds for retaliation claims.
Is the Complainant A Good Witness?
Lawyers will evaluate the complainants to see how they appear before a judge or a jury. A witness in the appropriate attire for a hearing and a calm disposition will appear more credible. Besides their appearance, complainants must take care that they do not appear too emotional. The story must also “hold together” or have internal consistency.
A sexual harassment case is difficult for everyone concerned. A person who wants to file a case like this needs to come prepared. They cannot let their emotions get in the way of presenting a clear and convincing case. Hiring a lawyer specializing in this field will help.
Consult Ronemus & Vilensky regarding sexual harassment laws and how to deal with hostile work environments. Robert Vilensky, Michael Ronemus, and their hardworking team of New York-based attorneys prepare for each case with utmost care and thoroughness. Request a free consultation today!