CAN I SUE MY EMPLOYER FOR SEXUAL HARASSMENT?
Both state and federal law prohibit discrimination based on gender. Included in this type of discrimination is unwanted sexual advances or remarks, commonly known as sexual harassment. Both federal and state laws prohibit this type of harassment. Despite the nature of these claims, the motivation of the harasser doesn’t necessarily need to be sexual desire. Any harassment based upon a person’s sex is enough. Thus, harassing a coworker because he is “effeminate” is also sexual harassment, because it is based upon the victim’s sex. It is also worth noting that the harasser(s) may be the same sex as the victim. This is often the case in the previous example, where male coworkers harass another male. Below is a brief overview of the various types of claims for sexual harassment.
Title VII Claims
Title VII of the Civil Rights Act prevents discrimination based upon gender, including sexual harassment. It is the most likely source of remedy for victims of sexual harassment (along with state law “sister statutes”). Title VII recognizes two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo is the more aggressive, but less common, type of harassment. In quid pro quo harassment, a supervisor hinges a benefit or condition relating to work on unwelcomed sexual conduct. The Supreme Court first recognized this type of harassment in Meritor Savings Bank v. Vinson, where Vinson’s boss offered her a promotion only if she would sleep with him. As was the case in Vinson, reluctant acceptance of such a proposition does not necessarily defeat the victim’s claim. It will, however, make proving the claim much hard and strengthen the harasser’s claim of consent.
The more common type of harassment is hostile work environment. There, unwelcomed conduct, such as verbal remarks or touching are so dramatic that they render the working conditions for the employee hostile. The level of conduct must be “severe or pervasive.” Thus, a single stray remark is likely insufficient unless it is extremely hostile. More commonly, these claims are based upon an environment of hostility towards one gender. A common example is a “blue collar” setting, where male coworkers routinely objectify women by making lewd remarks or even touch the few female workers. An employee may feel they have no choice but to quit such employment, known as “constructive discharge.”
Title VII not only establishes these remedies, but also establishes the Equal Employment Opportunity Commission (“EEOC”) to help enforce the laws. When an employee experiences sexual harassment, his or her first stop must be with the EEOC. The employee files a complaint within 180 days of the harassment and must wait until the EEOC issues documentation an additional 180 days to file suit in court. The employee has a very brief window to file a lawsuit after receiving this documentation. When an employee fails to utilize this step or misses any of its deadlines, the claim is lost.
Kansas Acts Against Discrimination
Kansas also offers a set of discrimination laws. This state systems function just like Title VII: an administrative agency receives initial complaints before issuing key documents needed to file a claim in court. The Act also recognizes both quid pro quo and hostile work environment claims. Additionally, it follows a very similar condensed timeline. In fact, when a victim of discrimination files with either the EEOC or Kansas Human Rights Commission, the filing is given to both agencies in a file-share program. It will be at the option of the victim which agency to request the filing documents from and thus which court to file in. Generally, such claims are filed in state court. However, the decision of which court to file (and which law to use) is a very individualized question turning on the facts of each case.
When sexual harassment has reached the level of physical touching, it may also be addressed via an action for battery. Battery includes not only injury-inflicting hits, but any unwelcomed and unjustified physical contact. Courts have held that this includes unwanted sexual touching. The benefits of this remedy are that it removes the need to establish any coverage under a statute, as the employment discrimination remedies do. Therefore, an independent contractor (rather than a statutory employee) could bring a battery claim for sexual harassment even though the discrimination statute wouldn’t cover her. Additionally, a battery claim enjoys a much longer period in which the victim can file. This means even if the physical contact occurred outside the 180-day period required by Title VII, the employee can still seek damages in court.
Battery does have its own shortcomings. First, the employer will rarely be held liable for any part of a battery; only the individual that actually made the physical contact committed the battery. This means that there may be little to no recovery for a successful claim. Individuals are much less likely to have means to pay large damage awards. Employers, on the other hand, will generally always have insurance policies or assets capable of satisfying a judgment. Thus, battery claims may provide the victim with vindication but little else.
In-House Programs and Reporting Schemes
A final “remedy” is non-judicial action: use of in-house programs. Employers should have sufficient programs in place to prevent and correct sexual harassment. In fact, an employer (but not the harasser) may raise a defense of having an adequate program that a victim failed to use to prevent liability under Title VII. Either way, in-house reporting should generally be the harassment victim’s first step. Many victims fail to report for fear of negative reactions from management or coworkers. Title VII also provide liability for retaliation for reporting, though not every aspect (such as “cold-shouldering”) of “retaliation” is covered. Thus, even in the early stages of responding to sexual harassment, contacting legal counsel is essential to determine how and when to use in-house reporting programs.
There are many pathways to remedies for sexual harassment. Each has complicated advantages and disadvantages, and the facts of each case will determine which avenue is best. Thus, it is very important to contact experienced legal counsel as soon as harassment has occurred. This is the only way to ensure that no important deadlines are missed and that the best relief possible is achieved.