Sexual harassment is illegal and often results in job loss, stress, low self-esteem, and various other psychological and medical issues. It is essential for all employees–and especially those employees who believe they may be the target of sexual harassment–to have a full understanding of the legal protections and remedies available to them.  If you believe you are a victim of sexual harassment, call Rodriguez Law at 212-960-3305 or email us at info@lawrodriguez.com.  We provide free consultations and handle most sexual harassment cases on a contingent fee basis.

Laws Protecting Employees Against Sexual Harassment

Sexual harassment in the workplace is considered a form of gender discrimination, and is prohibited by a variety of federal, state and local laws. On the Federal level, sexual harassment violates Title VII of the Civil Rights Act of 1964. In New York state, employees are also protected against sexual harassment by the State Human Rights Law, and employees in New York City are also protected by the City Human Rights Law. These laws provide victims of sexual harassment with independent avenues of redress, which means a plaintiff may–and often does–sue under each of these laws simultaneously.  Moreover, the laws contain slightly different standards and remedies. It is therefore important to understand each of them.

What is Sexual Harassment?

Broadly speaking, sexual harrassment is any unwelcome sexual advance, including unwelcome verbal or physical sexual conduct.  There are two types of sexual harassment. The first, often referred to as “quid pro quo,” occurs when an employee is required to engage in sexual conduct as a condition of employment or to gain a promotion or other employment related benefit.   The second, which is known as “hostile work environment,” occurs when sexual words or conduct in the workplace create a hostile, offensive or intimidating work environment, regardless of whether the conduct comes from a supervisor or other individual in a position of authority and regardless of whether the sexual conduct is made a condition of employment.

It is important to note that the sex of both the victim of harassment and the harasser is not relevant. Both victim and harasser can be either a man or a woman, and the victim and the harasser can also be of the same sex.

Quid Pro Quo Harassment

When most people think of sexual harassment in the workplace, they are probably more often than not thinking of quid pro quo harassment. Quid pro quo harassment happens when an employee is required to engage in sexual conduct–including submission to unwelcome advances–as either an implicit or explicit condition of that person’s employment. In other words, quid pro quo harassment occurs when an employee must submit to sexual conduct in order to keep her job or receive a promotion or other benefit.

Quid pro quo also happens when the rejection of unwelcome sexual advances is the basis for an adverse employment action, such as termination, demotion, or the denial of a promotion. Finally, a third-party who is not herself subject to unwelcome sexual advances may state a claim for quid pro quo harassment  if she is denied benefits or promotions in favor of a coworker who received those benefits because of favoritism based on sexual conduct.

Hostile Work Environment Harassment

The second type of workplace sexual harassment claim is for “hostile work environment.” Hostile work environment harassment is different from quid pro quo in that the unwelcome conduct does not need to come from a direct supervisor or someone in authority, and does not need to be a condition of the victim’s employment. Consequently, the standard for establishing a claim of hostile work environment harassment is somewhat higher.

Simply put, a victim can state a claim for hostile work environment harassment when verbal or physical conduct of a sexual nature in her place of employment is so extreme that it materially alters the conditions of the victim’s employment. Courts look to several factors to determine whether a hostile work environment exists: 1) whether the conduct was verbal or physical or both; 2) the frequency of the conduct; 3) whether the harasser is a supervisor or simply a coworker; 4) whether the conduct is objectively offensive; and 4) whether the conduct was directed at more than one individual.  No one factor is necessary or dispositive.

The Supreme Court has made clear that Title VII is not a general workplace “civility code.” Incidental and occasional comments are therefore not enough to establish a claim. Although an isolated incident may be sufficient if it is truly outrageous–such as rape or assault–generally the conduct must be pervasive and frequent. The conduct must also be objectively severe, not simply subjectively offensive. At the same time, the conduct need not be so severe that it leads to a complete nervous breakdown. The Supreme Court has made it clear that an abusive work environment may detract from an employee’s job performance or discourage an employee from remaining on the job even if it does not have a debilitating effect on the employee’s psychological well-being.

Workplace Sexual Harassment Doesn’t Just Involve Physical Contact

As noted above, laws against sexual harassment do not establish a “general civility code,” and incidental comments, even if they may be vulgar or rude, will usually be insufficient to state a claim. However, workplace sexual harassment is not limited to physical contact. In New York, the following have all been found to constitute sexual harassment, either under the “quid pro quo” or the “hostile work environment” approach:

  • Sexual innuendos, obscene jokes, slurs, lewd remarks & language
  • Content in letters/notes, faxes, e-mails, graffiti
  • Demeaning names based on gender or sexual orientation
  • Persistent unwanted sexual or romantic overtures or attention
  • Leering, whistling or other sexually suggestive sounds or gestures
  • Pornographic photos, naughty cartoons, sexual materials at work
  • Forced touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing, fondling, tickling
  • Subtle or overt pressure for sexual favors
  • Coerced Sexual Intercourse (as a condition of employment, or for promotion or for salary increase)
  • Requests for sexual favors
  • Touching, rubbing, pinching, hugging, massaging, patting, kissing, or unwanted physical closeness
  • Email, texts, letters, or calls regarding sex
  • Sexual jokes, comments or teasing
  • Graphic workplace discussions about sex
  • Questions about your sex life, sexual fantasies or experiences
  • Touching of your hair, body or clothing
  • Making sexual gestures or comments in the workplace
  • Spreading sexual rumors or stories

 Remedies for Sexual Harassment

There are three general categories of remedies to which victims of workplace sexual harassment are entitled. The first, economic damages, provides recompense for any lost wages and benefits. This is also known as back pay. Victims are also entitled to injunctive relief, such as reinstatement or promotion. In lieu of reinstatement, many employers prefer to pay the victim an approximation of her salary for the number of years she would have been employed had it not been for the harassment. This is known as front pay.

In addition to economic damages, victims of sexual harassment in the workplace are also entitled to compensatory damages–or damages for emotional distress–and punitive damages, which are designed to punish the harasser for the violation rather than reimburse the victim. Under Title VII, the federal law, compensatory and punitive damages are capped based on the sized of the employer. The New York State Court Human Rights law does not provide for punitive damages, but under the New York City Human Rights law, both punitive and compensatory damages are available with no cap. Finally, under certain circumstances a victim may also recover her attorneys’ fees and the costs of the litigation.

Contact Rodriguez Law

Sexual harassment unfortunately remains a common occurrence in today’s workplace.  If it happens to you, call Rodriguez Law at 212-960-3305 or email us at info@lawrodriguez.com. We provide free consultations and handle most sexual harassment cases on a contingent fee basis.  This means there is no fee until we win your case.