Sexual harassment in the workplace

Sexual harassment is common in the workplace, and far too often, it goes unreported.  Employees don’t take action because they fear retaliation or because they think they did something to invite the harassment.  You should know what sexual harassment is, what your legal rights are, and what you can do to stop harassment.

What is sexual harassment?

Sexual harassment is a type of sex discrimination that involves unwelcome conduct of a sexual nature.  The conduct may be physical or verbal, and it may or may not result in or involve an adverse employment action.  The harasser may be a supervisor, a coworker, or even a customer.  Some common examples of sexual harassment are:

• Compliments or sex-based comments about physical appearance or attributes
• Requests for sexual favors
• Sexual jokes and innuendo
• Display of sexual images or materials
• Sexual advances
• Use of sex-based nicknames and slang

Are there different types of sexual harassment?

There are two primary forms of sexual harassment:

1. Quid pro quo: It occurs when a job, promotion, raise, or some other tangible employment action is conditioned on acceptance of unwelcome sexual conduct.
2. Hostile work environment: In this case, the employee is subjected to severe and pervasive harassment that doesn’t involve or result in an employment action.

Is sexual harassment in the workplace illegal?

Federal and state laws prohibit sexual harassment.  Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that prohibits sexual harassment by covered employers, including the federal government.  It also makes it illegal for employers to retaliate against employees who complain about sexual harassment.

The DC Human Rights Act (DCHRA) prohibits sexual harassment by DC government agencies and private-sector employers in DC.  Maryland and other states and counties have similar laws that prohibit sexual harassment in the workplace.

What should I do if I’m being harassed?

If you’re being sexually harassed at work, take action.  Tell your harasser to stop. You should also immediately report the harassment to management, Human Resources (HR), or an EEO counselor.

Tell your harasser to stop.

Sexual harassment is only illegal if it’s unwelcome.  In many cases, it’s obvious that harassment is unwelcome.  But sometimes, it’s not so clear. For example, your coworker might not understand that you don’t like it when he/she compliments your physical appearance or asks you on a date.  Tell your harasser to stop; make sure your harasser knows you don’t like what he/she is doing. If a harasser sends you a text message or an email, respond in writing, and tell him/her to stop.

Report the harassment.

Your employer may have a policy about how to report sexual harassment, and what to include in it.  Review your employee handbook, the company website, or any materials you received when you were hired.  Regardless of whether your employer has a policy, you should immediately report harassment to a supervisor, HR, and/or an EEO counselor.  If your supervisor is the one harassing you, you can report the harassment to another supervisor.

Employees are frequently afraid to complain or make reports in writing.  However, it’s easy for an employer to deny that you made a verbal complaint.  Having a written record establishes when your employer became aware of the harassment.  Proving that date will be important in your case.

What happens after I report sexual harassment?

After you report sexual harassment to a supervisor, HR, or EEO, your employer should take immediate and effective action.  This may include investigating your allegations and taking corrective action against your harasser. Unfortunately, some employees face retaliation after complaining about sexual harassment.  If that happens, you should report the retaliation, as well. You may also want to consider taking formal legal action and consulting an attorney who handles sexual harassment cases.

Can I sue my employer for sexual harassment?

You can take legal action as long as your employer is covered under Title VII, the DCHRA, or another law that prohibits sexual harassment in the workplace.  Initiating the legal process depends on your employer and work location.

Federal government employees

As a federal employee, you must file an administrative complaint with your agency before you can file a lawsuit in court.  Contact an EEO counselor within 45 days to begin the informal complaint process. If your claim is timely, you will receive a notice of right to file a formal complaint.  You must file your formal complaint within 15 days after you receive the notice. The agency then has 180 days to investigate your complaint.

At the end of the investigation, you have the right to:

1. Request a hearing before an Equal Employment Opportunity Commission (EEOC) administrative judge;
2. Ask for the agency to issue a Final Agency Decision (FAD) on your case; or
3. File a lawsuit in federal court.

State/local government employees

Many state and local government employers have administrative processes that are similar to the federal government process described above.  However, your state or local agency may have shorter deadlines. You may need to contact an EEO counselor or HR within as few as 30 days. You may be required to complete your employer’s administrative process before filing with the EEOC or a similar state or local agency, like the DC Office of Human Rights (DCOHR).

Private-sector employees

As a private-sector employee, you have several options, depending on where you work:

Your employer may have its own sexual harassment complaint policy.  But be aware that participating in your employer’s procedure doesn’t stop the clock for filing with EEOC or a state or local administrative agency.

How do I prove sexual harassment?

If the sexual harassment resulted in a tangible adverse action, you must prove that:

• You were subjected to unwelcome sexual conduct;
• Employment or employment benefits were conditioned on your acceptance of the sexual conduct; and
• You suffered harm as a result of the sexual conduct.

If the harassment did not result in a tangible adverse action, you must prove that:

• You were subjected to unwelcome sexual conduct;
• The conduct had the purpose or effect of unreasonably interfering with your work performance and/or creating an intimidating hostile, or offensive work environment; and
• The employer is liable for the conduct.

In order to win your case, you need evidence, which may include:

• Your own testimony about what happened
• Statements from witnesses
• Emails or text messages to or from your harasser
• Other documents and communications

When each incident of sexual harassment occurs, write yourself a memo that includes the date you wrote the memo, the date the incident occurred, and details about what happened.  These notes will help you remember important facts in the case and will serve as crucial evidence.

Should I hire an attorney for my sexual harassment case?

An experienced attorney can greatly facilitate the process and improve your chance of success.  A lawyer can determine if you have a claim, identify and explain your options. Your attorney can advise you about whether it’s better for you to file an administrative complaint with the DCOHR or a lawsuit in DC Superior Court.  He/she can also explain whether you could recover more damages under federal or state law. An experienced attorney will make sure you file on time and include necessary information in your complaint.

If you have been sexually harassed at work, Alan Lescht and Associates can help.  We represent federal government employees around the world, and state and local government and private sector employees in DC, Maryland, and northern Virginia.  Our attorneys handle administrative complaints filed with the EEOC, DCOHR, MCCR, and similar agencies, and we litigate sexual harassment cases in federal and state courts.