Law Offices of Mitchell Schley, LLC

New York and New Jersey Labor and Employment Lawyer

197 Route 18 South
South Tower – Suite 3000
East Brunswick, NJ 08816
Phone: (732) 325-0318
Fax: (732) 325-0317

245 Park Avenue, 39th Floor,
New York, NY 10167
Phone: (212) 672-1848
Fax: (212) 372-8798

mschley@schleylaw.com

Contact us for a free telephone consultation at

(732) 325-0318

Sexual Harassment - Legal Standards

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees. Sexual harassment can be unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that explicitly or implicitly affects an individual’s employment. These acts can also rise to the level of sexual harassment when they unreasonably interfere with an individual’s work performance or create a hostile or offensive work environment. This page will discuss the topic of sexual harassment and the relevant laws in greater detail. For more information on sex discrimination also see our sex discrimination page.

  1. What is sexual harassment?
  2. What kinds of behavior could be considered sexual harassment?
  3. Which laws pertain to sexual harassment?
  4. Are there different types of sexual harassment?
  5. Who can be considered a harasser in the workplace?
  6. Can one incident of harassment or offensive behavior constitute sexual harassment?
  7. What is sexual violence in the workplace?
  8. Who is covered by the law?
  9. I was harassed by my boss. Is the company legally responsible?
  10. Who enforces the law?
  11. How is employer liability for sexual harassment structured under the law?
  12. What are the remedies available to me?
  13. How can I file a complaint?
  14. What will the EEOC do after I file a complaint?
  15. Other Resources 

1. What is sexual harassment?

Sexual harassment is a form of sex discrimination and violates Title VII of the Civil Rights Act of 1964 when it occurs in the workplace. EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

  • Submission to such conduct is a term or condition of an individual’s employment. The requirement may be stated outright or may be implicit, or implied.
  • Submission to or rejection of the conduct is a basis for employment decisions
  • Conduct of a sexual nature has the purpose or effect of unreasonably interfering with work performance
  • Conduct of a sexual nature creates an intimidating, hostile, or offensive working environment.

Unwelcome is the critical word. Unwelcome means unwanted. Sexual conduct is unwelcome whenever the person subjected to it considers it unwelcome.

Anyone, male or female, can be a victim of sexual harassment. The victim and the harasser can be a woman or a man, and they can be the same sex. A man might harass another man, a woman might harass another woman.

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2. What kinds of behavior could be considered sexual harassment?

What constitutes sexual harassment can vary depending on the situation and people involved. Sexual harassment might include unwelcome sexual advances or requests for sexual favors.  Direct or indirect threats or bribes for sexual activity may be sexual harassment. Sexual innuendos and comments, or sexually suggestive jokes may be sexual harassment in some contexts. Unwelcome touching or brushing against a person, or displays of explicit material may be sexual harassment. Finally, attempted or completed sexual assault would be sexual harassment.

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3. Which laws pertain to sexual harassment?

Title VII of the Civil Rights Act of 1964 is a federal law that protects individuals from discrimination based upon sex. This law makes it illegal for an employer to discriminate against individuals in hiring, firing, and other terms and conditions of employment, like promotions, raises, and other job opportunities because of their sex. Courts have found that sexual harassment is a form of sex discrimination and therefore violates the laws against sex discrimination in the workplace.

Sexual harassment as sex discrimination under Title VII is shown by proving that the harasser targeted one sex or displayed general hostility to one sex, without regard to which sex the harasser or victim are.

Some states have laws that offer employees protection against sexual harassment beyond Title VII. For more information, check out your state’s relevant laws or contact an employment lawyer in your state.

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4. Are there different types of sexual harassment claims?

Yes, generally there are two types of sexual harassment claims:

Quid pro quo sexual harassment: when employment decisions – like promotions, assignments, or keeping your job – are based on your willingness to submit to the sexual harassment.

Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature is quid pro quo sexual harassment when:

  • submission to such sexual conduct is  explicitly or implicitly a term or condition of employment or
  • submission or rejection of the sexual conduct is the basis for employment decisions.

Hostile work environment claims: when sexual harassment makes your workplace environment intimidating, hostile, or offensive.

Unwelcome sexual advances, requests for sexual favors, and other verbal sexual conduct is hostile environment sexual harassment when:

  • the conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or
  • the conduct creates an intimidating, hostile, or offensive working environment.

Courts consider several factors to determine whether an environment is hostile, including:

  • whether the conduct was verbal, physical, or both;
  • how frequently it was repeated;
  • whether the conduct was hostile or patently offensive;
  • whether the alleged harasser was a co-worker or supervisor;
  • whether others joined in perpetrating the harassment; and
  • whether the harassment was directed at more than one individual
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5. Who can be considered a harasser in the workplace?

The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.  In fact, a victim of sexual harassment does not necessarily have to be the person directly being harassed; the victim could be an employee who is indirectly but negatively affected by the offensive conduct.

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6. Can one incident of harassment or offensive behavior constitute sexual harassment?

It depends. Quid pro quo cases may be considered sexual harassment when linked to the granting or denial of employment benefits. On the other hand, the conduct would have to be quite severe for a single incident or isolated incidents of offensive sexual conduct or remarks to rise to the level of a hostile environment. Hostile environment claims usually require proof of a pattern of offensive conduct. Nevertheless, a single and extremely severe incident of harassment may be sufficient to constitute a Title VII violation. A general rule of thumb is that the more severe the harassment is, the less likely it is that the victim will be required to show a repetitive series of incidents. This is especially true when the harassment is physical.

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7. What is sexual violence in the workplace?

Sexual violence is divided into three categories:

  • use of physical force to compel a person to engage in a sexual act against his or her will, whether or not the act is completed;
  • attempted or completed sex act involving a person who is unable to understand the nature or condition of the act, to decline participate, or to communicate unwillingness to engage in the sexual act, e.g., because of illness, disability, or the influence of alcohol or other drugs, or because of intimidation or pressure; and
  • abusive contact.

Given the dynamics of the working environment and the potential for intimidation based upon power relations between employees and their supervisors or as between co-workers, sexual violence in the workplace is a real problem. The United States Department of Justice estimates that eight percent of all rapes occur while the victim is working.

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8. Who is covered by the law?

Title VII covers private employers, state and local governments, and educational institutions employing 15 or more people. These laws also cover private and public employment agencies, labor organizations, and joint labor-management committees controlling apprenticeship and training.

Many states also make it illegal to discriminate on the basis of sex. Somes states' harassment laws apply to even more employers than the laws on other types of discrimination because they cover employers with fewer employees that the discrimination laws. For more information, please see our page on the minimum number of employees needed to file a claim under your state law. 

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9. I was harassed by my boss. Is the company legally responsible?

An employer is always legally responsible for harassment by a supervisor that culminates in a tangible employment action. The company cannot avoid legal liability on the basis that you did not complain about the harassment, or because it took other steps designed to discourage workplace harassment. The Supreme Court recognized that this result is appropriate because an employer acts through its supervisors, and a supervisor's undertaking of a tangible employment action is equivalent to an act of the employer.

If you have been harassed by a supervisor, you should consult with an attorney to determine whether you have been subjected to a tangible employment action. If you have been, then you would be entitled to pursue a lawsuit to recover for the harm you have suffered, including lost wages and psychological harm.

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10. Who enforces the law?

The Equal Employment Opportunity Commission (EEOC) is the federal agency responsible for investigating charges of job discrimination related to sex in workplaces of 15 or more employees. Most states also have their own agencies that enforce state laws against discrimination.

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11. How is employer liability for sexual harassment structured under the law?

Employers can be legally responsible for sexual harassment against their employees and liable to them for damages. Liability depends on the type of harassment, and who committed it.

Harassment by a supervisor:

If the harassment results in a tangible employment action (such as firing, demotion, or unfavorable changes in assignment), the employer is liable.

If the harassment is a hostile work environment, then the employer can also be liable, but it has a possible defense, if it can show that the employer exercised reasonable care to prevent and promptly correct any harassment and the employee unreasonably failed to take advantage of the company's preventive or corrective measures.

Harassment by a co-worker:

The employer is liable if it knew or should have known about the harassment unless it took immediate and appropriate corrective action. Significant monetary damages are possible and not uncommon in sexual harassment cases. Victims of harassment may receive both compensatory and punitive damages, and they are entitled to a trial by jury.

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12. What are the remedies available to me?

Victims of sexual harassment can recover remedies including:

  • back pay;
  • hiring;
  • promotion;
  • reinstatement;
  • front pay (compensates the victim for anticipated future losses);
  • compensatory damages (emotional pain and suffering);
  • punitive damages (damages to punish the employer); and
  • other actions that will make an individual "whole" (in the condition she or he would have been but for the harassment).

Remedies also may include payment of:

  • attorneys' fees;
  • expert witness fees; and
  • court costs.

An employer may be required to post notices to all employees addressing the violations of a specific charge and advising them of their right to be free of discrimination, harassment, and retaliation. If necessary, such notices must be accessible to persons with visual or other disabilities that affect reading. The employer also may be required to take corrective or preventive actions with regard to the source of the discrimination and minimize the chance it will happen again, as well as discontinue the specific discriminatory practices involved in the case. Your state law may allow for greater or different remedies than federal law.

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13. How can I file a complaint?

For more information on filing a complaint about sexual harassment, select your state from the map or list below.

united states map Washington Oregon Idaho Montana North Dakota Nevada Utah Arizona California New Mexico Colorado Wyoming South Dakota Nebraska Kansas Texas Oklahoma Louisiana Mississippi Arkansas Alabama Tennessee Missouri Iowa Minnesota Wisconsin Michigan Illinois Indiana Florida Georgia South Carolina North Carolina Virginia Kentucky Ohio West Virginia Pennsylvania New York Vermont Massachusetts Rhode Island Connecticut New Jersey Delaware Maryland Maine New Hampshire District of Columbia Alaska Hawaii
 



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14. What will the EEOC do after I file a complaint?

After you have filed a complaint, the EEOC will notify your employer that you have filed a charge and will begin an investigation into your complaint. The EEOC may then a take a number of different paths. First, the EEOC may attempt to settle your complaint or refer you and your employer to a mediator. Second, if the EEOC is unable to reach a settlement both parties agree on, and the defendant is a private employer, the EEOC may file a lawsuit in federal court. Finally, the EEOC may also choose to simply dismiss the charge. When a charge is dismissed, or if the EEOC is unable to reach an agreement to settle the complaint, the EEOC will issue a notice to you advising you of your right to sue in court. This notice is called a “right-to-sue” letter. If you want to file a lawsuit before the EEOC completes its process, you may request a right-to-sue letter.

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15. Other Resources

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Law Offices of Mitchell Schley, LLC
197 Route 18 South, South Tower – Suite 3000, East Brunswick, NJ 08816 • Phone: (732) 325-0318 • Fax: (732) 325-0317
245 Park Avenue, 39th Floor, New York, NY 10167 • Phone: (212) 672-1848 • Fax: (212) 372-8798
mschley@schleylaw.com
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