Sexual Harassment Law: Everything You Need to Know
Sexual harassment law is the legislation that defines and prohibits sexual harassment, as well as creates methods for addressing sexual harassment.8 min read
2. Sexual Harassment is Well-Hidden
3. Understanding Sexual Harassment Law
4. Understanding Title VII
5. Sexual Harassment Law
6. Sexual Harassment Law Enforcement
7. Internal Company Policies
8. Resolution Processes
9. Legal Actions
10. Title IX: Sexual Harassment in an Educational Setting
11. Legal Views of Sexual Harassment
12. A Changing Legal Landscape
13. Policy Guidance on Current Issues
Sexual Harassment Law
Sexual harassment law is the legislation that defines and prohibits sexual harassment, as well as creates methods for addressing sexual harassment. The primary piece of legislation for sexual harassment in the United States is Title VII of the Civil Rights Act of 1964. It created the legal definition of sexual harassment at the federal level, and established regulations to prevent sexual harassment in the workplace. Laws also exist at the local and state level that are often more comprehensive than Title VII.
Sexual Harassment is Well-Hidden
It is hard to identify and manage in the workplace because it is well-hidden in most cases. Due to the often private nature of the offending, sexual harassment usually leaves behind little by way of evidence. This can lead to a combative, "my-word-against-yours" style complaints process and accusations levelled at the affected person by the accused and others in the workplace that they are deceitful or dishonest. Thus, unless recordings or witnesses are present, many instances of sexual harassment go un-reported or unresolved.
It can also be very difficult for management in the workplace to identify individual instances of subtle sexual harassment. Most people who experience instances of subtle sexual harassment are otherwise treated fairly in that they receive the same levels of pay, are considered for promotions, and are not in danger of losing their job. Without these signs of a hostile working environment, it is difficult to identify signs of sexual harassment.
Sexual harassment becomes more obvious when it reaches the level of disruption and the targeted person cannot do his or her job because of the existence of sexual harassment. This often results in a hostile working environment which is much easier to spot than individual cases of sexual harassment. The continued exposure to multiple forms of sexual harassment creates a pattern of behavior that is also easier to prove.
Understanding Sexual Harassment Law
Sexual harassment law attempts to address sexual harassment on a larger scale by making it a primary focus within workplace development. It creates substantial liabilities for companies and individuals that are found to be negligent or culpable. This leads many companies to actively try to prevent and respond to sexual harassment.
Sexual harassment is a type of discrimination. Title VII creates regulations for different forms of discrimination including gender. As a result, sexual harassment falls within the scope of Title VII.
Understanding Title VII
Title VII is the defining law that outlines what sexual harassment is and how it is handled. There are several key stipulations for the enforcement of Title VII regulations including the following:
- Title VII applies to the actions of companies and their employees.
- The company must have 15 or more employees.
- Federal, state, and local governments must comply.
- Educational institutions must comply.
The key stipulation of Title VII is that it only applies to companies with 15 or more employees. The majority of companies in the United States have fewer than 15 employees. These companies are covered by local and state laws. Such laws may also apply to larger companies.
Sexual Harassment Law
Sexual harassment laws apply to anyone regardless of gender. The majority of cases are cases of a man harassing a woman. However, there have been cases that show different variations of this including a woman harassing a man, and same-sex harassment cases. The Supreme Court has ruled that same-sex sexual harassment is possible.
Laws focus on addressing the two main types of sexual harassment: Quid Pro Quo and Hostile Environments. Quid Pro Quo harassment occurs when someone uses their position of influence to request sexual favors or to otherwise sexually harass someone else in return for favors. For example, a man asking for sexual favors in return for promoting a woman at work is considered Quid Pro Quo harassment.
Hostile Environment harassment occurs when the working environment becomes saturated with inappropriate sexual conduct that is disruptive, harmful, and disabling to the staff. An example of this would be placing sexually explicit imagery around an office which would be distracting to everyone in the office. It is an unwanted and inappropriate action involving sexual themes that are a problem for the entire office.
In practice, hostile environments are more common although they are difficult to prove in many ways. The actions that create a hostile environment are usually not as clear as this example. In Quid Pro Quo harassment, there is a defined action that is not ambiguous in any sense. This makes it easier to prove since the action is never acceptable can be proven with evidence. Hostile environments are subjective based on each employee's personality and the qualifications of hostile environments are continuously being changed by case-law.
Sexual Harassment Law Enforcement
The Equal Employment Opportunities Commission (EEOC) is the federal agency that oversees the enforcement of Title VII regulations across the country. Victims that faced negative repercussions from internal company complaints or did not receive a satisfactory resolution to a claim can file a claim with EEOC. The EEOC will begin a process to help victims receive compensation and a resolution to their sexual harassment claims.
Filing a claim with EEOC can result in a variety of ways. A successful resolution will give some measure of restitution to bring the victim back to the state that he or she was in prior to the incident. These restitutions could include:
- Monetary compensation.
- Reinstatement of employment (if the victim was terminated).
- A promotion (if the victim was denied a promotion).
- Lost wages.
- Punitive damages.
- Reimbursement of legal fees.
- Injunctive relief.
Aside from Title VII and EEOC, employees are protected by local and state regulations. These regulations are also referred to as Fair Employment Practice (FEP) laws. FEP laws differ from Title VII in that they usually do not allow for victims to collect personal damages. However, many of the other resolutions are possible. FEP laws can also be more comprehensive in that they cover all companies rather than only companies with 15 or more employees.
Internal Company Policies
Companies, especially those that fall under Title VII jurisdiction, have policies in place to handle sexual harassment internally. This process often involves working with the HR department or representatives to report and mediate the incident. In most cases, this can be enough to reach a satisfactory outcome since companies, at the least, want to avoid the other significant liabilities that are associated with sexual harassment cases.
Unless the sexual harassment that you experience involves clear criminal action (i.e. sexual violence like sexual assault), it is important to follow the policies in place within the company. Many legal jurisdictions prefer to have companies resolve these issues without the influence of law enforcement as it can have negative effects for the company overall. If you do not follow the policies within the company, there is a chance that your case will be dismissed from court. If the internal process fails, FEP agencies and EEOC can be involved in the resolution process.
Resolution processes used by FEP agencies and EEOC involves alternate dispute resolution (ADR) practices. This allows victims and companies to avoid formal legal actions that could hurt both parties financially and in other ways. The primary ADR method used is mediation which has proven to be an effective means of resolving issues.
On the state level, some states have established court systems to hear sexual harassment cases. This court functions much like civil court systems in that both parties are represented in court and can be awarded damages or seek other resolutions. In either case, the results of these processes are usually binding due to the initial agreements signed agreeing to take part in these processes.
In cases where legal actions are not immediately necessary and criminal, victims may file civil lawsuits against companies and individuals under the right conditions. To do this, the employee must:
- Follow the internal processes for the company without resolution.
- Complete the EEOC or FEP process without resolution and without having the case dismissed.
- The employee receives the right-to-sue notice from EEOC or FEP.
Essentially, the employee must exhaust all other possible avenues for resolution unsuccessfully and receive the right-to-sue letter. Without that notice, any civil case will probably be dismissed. The right-to-sue notice is tangible proof that you tried to address the problem in all other ways possible without a result. This policy is in place to stop ineffective lawsuits as they can have a significant effect on all of the parties involved.
Title IX: Sexual Harassment in an Educational Setting
While Title VII makes provisions for stopping sexual harassment in educational institutions, it is covered more in-depth by Title IX. More specifically, it is Title IX of the Educational Amendments of 1972. It specifically outlines the regulations against inappropriate conduct between teachers, professors, and administrators and students. It also includes provisions for sexual harassment between students.
Although the Educational Amendments have been in place since 1972, they saw little use by the courts until the 1990's. The Supreme Court of the United States heard several cases involving Title IX and its rulings gave a greater level of legitimacy to Title IX case law. Title IX cases are less common than Title VII cases which is likely due to a variety of reasons. However, they are treated just as seriously by educational institutions and law enforcement.
Legal Views of Sexual Harassment
From a legal standpoint, determining what is sexual harassment has presented continuing issues for legislators. There is an ambiguousness to the evidence of sexual harassment which makes it difficult to prove in many situations. As a result, laws define several ways of perceiving sexual harassment including:
- Discrimination based on the victim's sex.
- Sexually explicit actions that infringe on a victim's dignity.
- A threat to workplace health and safety.
In that same legal view, discrimination plays a significant role. Discrimination laws are established to protect a group within the community that is continually vulnerable to it. Many sexual harassment laws were established for the same reason, most often to protect women in the workplace. Specific laws have been put in place to protect other vulnerable groups as well and to expand the protections to everyone.
A Changing Legal Landscape
Specific sexual harassment cases can dramatically affect case law regarding sexual harassment. Two such cases were Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). Both cases were overheard by the Supreme Court. In these rulings, the Supreme Court established the precedent that companies could be held liable for sexual harassment within their organizations if it was conducted by leadership figures in the company. This was a significant change in case law since it allowed courts to hold the organizations that created an atmosphere that was permissive of sexual harassment responsible.
Policy Guidance on Current Issues
EEOC continues to direct the development of educational resources and guidelines for sexual harassment law enforcement. It creates the documentation needed to help organizations enforce sexual harassment law at different levels of jurisdiction. The guidelines can change over time based on new events and changes to case law.
EEOC was responsible for the 1980 ruling by the governing commission that established the case law for sexual harassment violations. The commission determined that sexual harassment violated Title VII, Section 703. With this in mind, the commission could establish specific criteria for determining what actions constitute sexual harassment. These guidelines are still used today to determine the content of violations and liability.
Companies that are looking for more information regarding Title VII, Title IX, or other sexual harassment law compliance have several options to get more information. It is important for companies to create effective ways of promoting compliance. A significant part of those efforts should be to create an atmosphere that is not conducive to sexual harassment.
If you need help with sexual harassment, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.