sexual harassment
These pages are for general informational purposes only and should not be considered legal advice. Your situation may not fit the claim you think it would, but it may fit another. Only an attorney with comprehensive knowledge of employment law can tell you whether you have a claim. You should always consult with an attorney before taking or refraining from taking any action in your individual situation.
sexual harassment rights
What is sexual harassment?
Sexual harassment, in the legal sense, refers to harassment that is sexual in nature. This can include unwanted sexual advances, requests for sexual favors, and other verbal or physical conduct that is based on sex.
There are two types of claims that can be brought for sexual harassment, a sexually hostile work environment claim and a quid pro quo sexual harassment claim. A sexually hostile work environment claim is when the sexual harassment alters work conditions and renders the environment abusive. A quid pro quo sexual harassment claim occurs when a supervisor makes acquiescence to sexual demands part of the terms of employment. If you are the victim of sexual harassment, you may have a claim for one or both sexual harassment claims.
What laws prohibit sexual harassment?
Sexual harassment is prohibited under federal law by Title VII of the Civil Rights Statute and under Michigan law by the Elliot-Larsen Civil Rights Statute.
Although these statutes do not explicitly prohibit sexual harassment, the courts have interpreted the prohibition against sex discrimination to include sex harassment.
Is all sexual harassment prohibited?
Technically yes, but all sexual harassment does not form the basis for a viable sexual harassment lawsuit.
In a hostile work environment, more fully described in the Do I Have a Claim section below, courts require the harassment to be unwelcome and severe or pervasive enough to alter the conditions of employment.
Unwelcome simply means unwanted.
The severe or pervasive requirement is a flexible one. Courts have held that one instance of severe sexual harassment can be actionable, but this is in rare circumstances. More commonly, the sexual harassment must be somewhat severe and pervasive to be actionable.
For example, a co-worker requesting a date on a daily basis after being told no would likely be sufficiently severe and pervasive to alter the conditions of employment, and thus be actionable. However, if the sexual harassment consisted of only one request for a date, the sexual harassment would likely neither be sufficiently severe or pervasive to form the basis for a viable sexual harassment claim.
However, there is a completely different legal framework in the quid pro quo sexual harassment context, also more fully explained in the Do I Have a Claim section below. Under a quid pro quo sexual harassment claim, if a supervisor asked the employee out on a date and made it a condition of employment, this sexual harassment may form the basis for a viable quid pro quo sexual harassment claim.
An example of an actionable quid pro quo sexual harassment claim is when an employer tells an employee they will be fired if he or she will not go on a date with the supervisor.
What can i do if i am being sexually harassed?
Your first option is to report the sexual harassment to the employer. The employer has a duty to take prompt remedial action reasonably calculated to stop the sexual harassment. You can find more information on this below.
The civil rights statutes also prohibit retaliation for reporting sexual harassment. This means the employer cannot punish you for reporting the harassment.
Your second option is to file a sexual harassment complaint with the Equal Employment Opportunity Commission (EEOC) or the Michigan Department of Civil Rights. They will investigate for free. However, estimates are that the EEOC only brings a charge approximately 2% of the time.
Your third option is to contact an attorney and pursue a sexual harassment lawsuit. You need a tough, experienced employment attorney to handle these complex claims. At Fett Law, we have over 35 years of experience handling sexual harassment claims and have obtained many substantial recoveries for our clients, including winning the first ever sexual harassment trial ever aired on CourtTV. Contact us today and we will evaluate your sexual harassment claim free of charge. You can find out more about Fett Law by visiting our homepage.
do i have a sexual harassment claim
If you are being sexually harassed, you may have a sexual harassment hostile work environment claim, a quid pro quo sexual harassment claim, or both. Below is a description of the legal framework for each type of sexual harassment claim.
sexual harassment hostile work environment
A sexually hostile work environment is described as unwelcome sexual conduct that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. The type of harassment that can create a sexually hostile work environment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or communication that is sexual in nature.
To be successful on a sexually hostile work environment claim, the employee must demonstrate the following: 1.) the employee belonged to a protected class; 2.) the employee was subjected to communication or conduct on the basis of sex; 3.) the employee was subjected to unwelcome sexual conduct; 4.) the unwelcome sexual conduct or communication was intended to or in fact did substantially interfere with the employee’s employment or create an intimidating, hostile, or offensive work environment; and 5.) employer liability.
1. protected class
The first requirement of a sexually hostile work environment claim is that the employee is a member of a protected group. In terms of sexually hostile work environment claims, this only requires that you have a sex or gender, and thus is almost never a legal hurdle.
2. Subjected to Communication or Conduct on the Basis of Sex
Under Michigan law, a sexually hostile work environment must be based on harassment that is sexual in nature. Thus, if the harassment is based on sex, but not sexual in nature, it is not sexual harassment under Michigan law and the employee will not have a sexually hostile work environment claim, although they may still have a hostile work environment claim based on sex. However, under federal law, sexual harassment also includes harassment directed at one sex that is motivated by animus toward that sex, thus encompassing both claims under a single sexually hostile work environment claim.
3. Harassment was Unwelcome
The third requirement for a sexually hostile work environment claim is that the harassment was unwelcome. To prove the sexual harassment was unwelcome, the employee does not have to establish that they stated the conduct was unwelcome, although this would be strong evidence that the sexual harassment was unwelcome. Rather, the inquiry is whether the sexual harassment was unwelcome considering the totality of the circumstances.
An employee may also establish the sexual harassment was unwelcome by demonstrating the alleged sexual harassment was not solicited or invited and that the alleged sexual harassment was offensive or undesirable.
Sexual harassment cases are often contested on this requirement where the employee “plays along” to a certain extent to keep the situation from getting worse. This is not fatal to a sexually hostile work environment claim, and evidence that the employee had complained of the sexual harassment to others can help overcome this hurdle. Evidence that the employee sought professional treatment due to the emotional distress caused by the sexual harassment can also demonstrate the sexual harassment was unwelcome.
4. Creation of Intimidating, Hostile, or Offensive Environment
The fourth requirement for a sexually hostile work environment claim is that the sexual harassment interfered with the employee’s work conditions or created an intimidating, hostile, or offensive work environment. The standard for determining whether a hostile work environment existed is an objective one, and asks whether a reasonable person would have found the environment hostile.
Among the considerations as to whether a reasonable person would find a sexually hostile work environment existed are the frequency of the sexual harassment, the severity of the sexual harassment, whether the sexual harassment was physically threatening or humiliating, and whether the sexual harassment unreasonably interfered with an employee’s work performance.
A sexually hostile work environment claim may be based on one incident of sexual harassment. However, this is rare and the sexual harassment must be particularly severe so as to render the work environment hostile. An example of this is sexual assault by a co-worker.
Likewise, a hostile work environment claim for sexual harassment may also be based on a series of offensive comments or acts that occur frequently enough to create a sexually hostile work environment. An example of this would be if a supervisor is constantly requesting sexual favors.
Most often, however, a hostile work environment claim for sex harassment is based on a series of relatively severe sexual harassments. There is no bright line rule for how severe the sexual harassment must be or how often the harassment must occur. Rather, it is often the case that the more severe the sexual harassment, the less frequent the sexual harassment needs to be to create a sexually hostile work environment. Similarly, the more often the sexual harassment occurs, the less severe the sexual harassment needs to be to create a sexually hostile work environment.
The ultimate inquiry will be whether the sexual harassment created an abusive or hostile work environment.
5. Employer Liability
To hold the employer liable for a sexually hostile work environment, an employee must establish that the employer knew or should have known about the sexual harassment but failed to take prompt remedial action.
An employee can prove the employer knew of the sexual harassment by demonstrating that a formal complaint was made or that the sexual harassment was reported to a supervisor. Likewise, an employee may demonstrate that the employer should have known about the sexual harassment by demonstrating that the harassment was so open, obvious, or pervasive that a reasonably diligent employer would have known about the sexual harassment.
Lastly, in order for the employer to be liable for the sexual harassment, an employee must demonstrate that the employer failed to take prompt remedial action reasonably calculated to stop the sexual harassment. This means that when the employer knows of, or should have known of the sexual harassment, the employer must take action to stop it. If the employer knows of or should have known of the sexual harassment and does nothing, the employer may be liable. Likewise, if the employer knows of or should have known of the sexual harassment, but delays taking action for a long period of time, allowing the sexual harassment to continue, the employer may be liable.
If the employer takes action immediately upon learning of the sexual harassment and stops the sexual harassment, the employer will likely not be liable. However, if the employer takes action upon learning of the sexual harassment, the sexual harassment subsides for a time, but then begins again, the employer could potentially still be liable if a fact finder concludes that the remedial action was not reasonably adequate to stop the sexual harassment.
quid pro quo sexual harassment
Quid pro quo sexual harassment claims are brought when a supervisor abuses its position to coerce the employee into sexual conduct. In contrast to a sexually hostile work environment claim, employers are strictly liable for a supervisor’s quid pro quo sexual harassment. This means that there is no requirement that the employee demonstrate fault on behalf of the employer. Rather, the law holds the employer liable regardless of whether they are at fault for the supervisor’s sexual harassment.
To establish a quid pro quo sexual harassment claim, the employee must establish either that, 1.) submission to sexual conduct was explicitly or implicitly made a term or condition for obtaining employment, or 2.) submission or rejection of sexual conduct was a factor in a decision affecting the employee’s employment.
An example of the former would be when a supervisor requires the prospective employee to go on a date in order to obtain employment. An example of the latter would be when a supervisor requires the employee to go on a date in order to obtain a benefit to which they are entitled, or retaliates against the employee by denying a benefit to which they are entitled for refusing their sexual advances.
Do I Have a SEXUAL HARASSMENT LAWSUIT?
To summarize, to have a viable sexual harassment hostile work environment claim, you must be able to demonstrate that the harassment was sexual in nature, that the sexual harassment was unwelcome, that the sexual harassment was severe or pervasive, and that the employer failed to take adequate action to stop the sexual harassment.
To have a viable quid pro quo sexual harassment claim, you must demonstrate that a supervisor mad acquiescence to sexual advances a term or employment.
However, even if you are able to establish the above legal requirements for a sexual harassment claim, the employer may still have defenses available that you would have to overcome. In addition, in order to have a viable sexual harassment claim, the damages you may recover for the sexual harassment must justify the time and expense of bring a sexual harassment lawsuit, although most viable sexual harassment claims will satisfy this consideration.
If you believe the sexual harassment you have been experiencing fulfills the requirements listed above, you may very well have a claim for sexual harassment. However, the law is complicated and the only way to know for sure is to have an experienced employment attorney review the facts of your case. If are the victim of sexual harassment, contact us today and we would be happy to review your sexual harassment case free of charge.