Can I Sue My Employer for Harassment: Everything You Need to Know
To know whether you can sue your employer for harassment, you must understand what harassment is.8 min read
2. What is Unlawful Workplace Harassment?
3. How to Obtain Relief from Workplace Harassment
4. Why You Might Want to Sue Your Employer for Harassment
Updated July 1, 2020:
Can I Sue My Employer for Harassment?
“Can I sue my employer for harassment?” sounds like a simple yes/no question but it isn’t. The answer is different for every unique situation.
To know whether you can sue your employer for harassment, you must understand what harassment is, understand what types of harassment are illegal, the steps you must take to avoid losing your right to sue your employer for harassment and the timing of those steps, and you must understand why you might want to sue your employer even if you are afraid.
What is Unlawful Workplace Harassment?
In everyday talk, the word harassment is used broadly to describe activities ranging from verbal bullying to inappropriate touching. It is sometimes used just to refer to an annoying or negative interaction with others at work (they were “harassing” me about attending the meeting) or unfair workplace actions.
For purposes of whether certain actions are unlawful, the broad use of the word does not work. Not every negative interaction at work is harassment. The law provides its own definitions of what constitutes harassment. Under state and federal anti-discrimination laws, harassment is usually offensive and unwelcome conduct that negatively impacts the conditions of the person’s work environment.
Types of Harassment. There are many different scenarios that can fit this definition – like ongoing cat-calling and sexually explicit jokes from co-workers that continue over a long period despite requests that they stop or even a single instance of groping. Harassment primarily comes in two broad forms: quid-pro-quo harassment and hostile work environment harassment.
Quid-pro-quo harassment is when the harasser forces the victim to take some action, like engage in sexual acts with the harasser, by threatening the victim with some type of negative work consequence like being demoted if they don’t comply.
Hostile work environment is when the harassing behaviors are so bad that they make it difficult for the employee-victim to endure work. Whether harassing behavior creates a hostile work environment is based on whether a reasonable person would believe the conduct to be offensive and feel that they were in a hostile, intimidating environment under the circumstances.
Hostile work environment harassment occurs when the conduct is severe or pervasive. A hostile work environment can be created from just one incident if it is bad enough but more often is established from a pattern of ongoing behavior. For example, constant “jokes” about the Holocaust and religious slurs directed at a Jewish employee could create a hostile work environment based on religion.
Unwelcome Conduct. To be harassment, the conduct suffered by the victim must have been unwelcome. Even objectively offensive jokes cannot serve as the basis of a harassment lawsuit if the employee voluntarily, willingly welcomed or participated in the joking. In most cases, it is obvious whether or not conduct was welcome. For example, being threatened with violence because of your race is clearly not conduct that the victim welcomes. This tends to come up most frequently in sexual harassment cases where the harasser argues that the victim enjoyed the flirtations or sexual jokes.
Protected Characteristics. Harassment at work is always unethical, but it is not always unlawful. The law prohibits harassment only when it is based on the victim’s membership in a “protected class,” a group of people with a certain protected characteristic. For example, harassing a fellow employee because they play with Legos is not illegal but harassing someone because they are black is illegal.
Harassment is considered a form of discrimination. All states and the federal government have laws that prohibit harassment as do some local governments, usually large municipalities like New York City. Under federal laws, protected characteristics include:
- National origin
Most states and local governments with anti-discrimination laws protect these same characteristics, and some add other characteristics like gender identity or sexual orientation.
How to Obtain Relief from Workplace Harassment
If you are being harassed in the workplace, there are steps you can and should take to bring it to a halt. Going through each step in the order listed will help resolve the issue with as little headache as possible and will help protect any claim you have against your employer.
Request to Offender. The first step in stopping harassing conduct is the easiest. Start by asking the offender to stop their offensive conduct. It is usually helpful to explain to the offender the exact conduct you are requesting that they stop. Sometimes, harassment occurs because the offender just does not realize the impact of their conduct. What they think is a playful joke, might leave you in tears.
Internal Complaint. If the harassing behavior does not stop after you ask the offender to stop, the next step is to make an internal complaint. An internal complaint is one made within your company to someone who can help you. If you do not know who to complain to, ask your human resources department and check your employee handbook. If your employer has a policy in effect for reporting harassment, you need to follow that policy exactly or risk losing a potential claim against your employer.
Complaining within the company before instituting a legal action, serves a few different purposes. First, it gives the company the opportunity to investigate and resolve the problem. Resolution is much quicker if it comes from the company rather than from a court order. Second, it protects your legal rights because failure to comply with policy could be used as a defense in court and if the company does not act, you may be able to receive more money, in the form of punitive damages, if you end up suing your employer.
Agency Charge. If your employer does not resolve the issue effectively, the next step is to file a charge of discrimination with the applicable federal or state agency. You cannot skip this step and go right to filing a lawsuit. To file a lawsuit for workplace harassment you are required to first file an agency charge.
A charge of discrimination is simply a complaint that you feel you have been harassed that sets forth some basic information like your name, your employers name and contact information, and a narrative describing the harassment you have suffered. You can hire an attorney to help you with your charge, or you can draft it on your own. No magic legalese needs to be used when drafting your employment discrimination charge and you do not need to make legal arguments.
You submit the charge to the state or federal agency that is in charge of investigating and helping resolve complaints of discrimination in the workplace. At the federal level, the Equal Opportunity Commission (“EEOC”) is the agency the charge is submitted to. At the state level, it depends, for example, in Florida, the agency is called the Florida Commission on Human Rights. You can call the EEOC or agency in your state to ask questions or visit their websites which usually provide useful information.
It is important to file your agency charge quickly because there are strict timelines for filing complaints – as little as 180 days from the date of the harassment. How long you have depends on a number of factors including whether you have a state or federal harassment claim and when the harassment developed.
Lawsuit. Although often thought of first by employees facing harassment, an employment lawsuit is actually the last step in the process of trying to stop the harassment against you. You must obtain a letter from the agency you filed your charge with giving you permission to sue before you can bring a harassment lawsuit. Once you get the right to sue, you should act quickly. There are also deadlines for filing your suit in court.
Lawsuits can be time consuming and emotionally draining but offer you the opportunity to vindicate your rights. If you succeed in your lawsuit, not only will you succeed in stopping the harassment, you will also recover monetary damages for the harm you suffered as a result of the harassment. There are limits, called “caps,” on how much you can recover under federal and state laws, but it is typically enough to fully compensate you.
Why You Might Want to Sue Your Employer for Harassment
The possibility of suing your employer is intimidating to many. Employees fear that harassment will get worse if they sue or that they will be terminated from their job, be demoted, or become an outcast at work. These are valid concerns. Sometimes things like this happen. However, there are still good reasons to pursue legal action if you are being harassed at work. Pursuing legal recourse if you believe you are being unlawfully harassed at work is important to stop the harassment and associated harm, to help prevent the harassment from occurring in the future, and to receive compensation for the negative impact of the harassment.
Legal Action to Stop Harassment. When informal or internal attempts to stop workplace harassment fail, legal action is often the only way to get it to stop. Sometimes, merely filing an administrative claim is enough to stop the harassment and settle the matter. Other times, pursuing a lawsuit is necessary.
You should not just grin and bear harassment at the workplace. Most people spend most of their waking hours at work. Negative workplace interactions, like harassment, whether with co-workers or supervisors impact your enjoyment and motivation at work. Worse, the negative impacts of harassment often spill over into your personal life.
Harassment, like sexual harassment, in the workplace can harm your mental and physical health. For example, you may find that you are anxious, depressed, or constantly in a state of stress worrying about when the next instance of harassment will occur. Scientific studies have shown that this type of ongoing stress commonly experienced with harassment is not just in your mind, it actually causes chemical and structural changes in your brain. Stress can get so bad that it causes other physical medical issues like ulcers or headaches. Additionally, the negative psychological impact of harassment may also cause rifts in friendships and romantic relationships because it impacts how you behave and your ability to enjoy life even outside of work.
Harassment may also cause your career to suffer. The psychological impact may make you less able to perform at your highest level at work and might deter you from applying for promotions. In avoiding your harasser, you may end up avoiding key meetings or serving on committees that could help your advance.
Legal Action to Prevent Future Harassment. Taking legal action is an important way to not only stop current harassment but to prevent future harassment against you or others. In the course of legal action for unlawful harassment, the harassers are often let go, and the employer puts new policies into place to help prevent future harassment. Legal action often deters future harassment.
Compensation for the Impact of the Harassment. Although the exact damages vary, every employee that is unlawfully harassed at work suffers in some pay. Filing a lawsuit cannot undo the harm that the harassment caused, but it can help compensate you financially for your suffering and reimburse you for expenses you may have incurred as a result (e.g., medical and psychological bills).
Retaliation is Unlawful. Even if you are fired for filing a harassment suit, you will be able to add a retaliation claim to your lawsuit because it is illegal for an employer to retaliate by taking adverse employment action against you because you filed such a suit. If you succeed on your retaliation claim, you can either recover your job or financial compensation for losing it, depending on the circumstances.
If you are an employee who wants to learn more about your options for stopping harassment against you or an employer that wants to prevent harassment in your workplace and associated lawsuits, post your legal need on UpCounsel’s platform today to get help from experienced, licensed attorneys ready to help.