The U.S. Supreme Court has long held that workplace sexual harassment is a form of discrimination unlawful under Title VII of the Civil Rights Act. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

To establish a claim for sexual harassment, a plaintiff must establish: (i) that the harassment occurred because of his or her sex; and (ii) that the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive working environment.

Harassment is sufficiently severe or pervasive, according to the U.S. Supreme Court, when it is “so offensive as to alter the conditions of the victim’s employment”. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998).

That standard is obviously very vague. In applying that standard, the federal appeals courts have provided several factors to consider. While these factors may vary slightly among courts, most consider the following four factors:

1. The frequency of the conduct.
2. The severity of the conduct.
3. Whether the conduct is physically threatening or humiliating, or a mere offensive utterance.
4. Whether the conduct unreasonably interferes with the employee’s job performance.

A few applications of these factors are helpful. For example, courts generally agree that a single kiss on the lips by a boss can be sufficient to establish a sexual harassment claim. On one hand, a single kiss is an isolated incident. On the other hand, courts typically acknowledge that there are few actions more severe or offensive than an unwanted kiss by a supervisor.

It should be noted that any unwanted touching that is sexual in nature by a supervisor is not only a possible sexual harassment claim, but also may constitute an unlawful sexual assault.

As another example, courts generally hold that a small handful of sexual related comments, even if the comments are directed towards the employee, are generally not sufficient to establish a sexual harassment claim.

The following is a non-exhaustive list of examples of actions that are unacceptable in the workplace and could constitute unlawful sexual harassment under certain circumstances:

• Unprompted comments or questions that are sexual in nature
• Unwanted physical contact of a sexual nature (e.g., kisses, hugs, butt or genital touching, rape)
• Pressing parts of one’s body against another in any sexual way
• Sex jokes
• Repeatedly asking someone else
• Asking for sexual favors
• Repeatedly asking someone out on a date
• Surprise dates under the pretense of a “work meeting”
• Suggestive text messages or emails
• Inappropriate communications after work hours
• Repeated compliments on someone’s looks
• Unwanted or inappropriate gifts of a romantic nature

If you believe you are subject to workplace sexual harassment, contact us immediately at (877) 858-6868 or email us at coordinator@caklegal.com.

For more general information about sexual harassment law, the EEOC provides a free helpful EEOC Sexual Harassment Fact Sheet: www.eeoc.gov

Any form of sexual harassment should not be tolerated. Inform your employer. As appropriate, inform your supervisor(s) and HR, Ideally, any verbal complaints you make should be memorialized by a follow up written complaint.

If the unwanted conduct does not stop, or if the conduct was so bad that you feel an attorney is needed – such as unwanted kissing or any other unwanted contact or extremely offensive conduct that is sexual in nature – contact a Cantrell Astbury Kranz, P.A. and speak with one of our employment attorneys. Initial consultations are free. Call today at (877) 858-6868 or email us at coordinator@caklegal.com

Yes. A claim for sexual harassment under Title VII of the Civil Rights Act is not limited to harassment by supervisors or business owners. Employers can also be liable for harassment by non-management, including co-workers and even third parties such as customers and contractors.

The legal test for whether a company can be liable for sexual harassment by someone who is not in management is two-prong:

• First, did the company know or the company should have known about the unwanted sexual harassment?
• Second, if so, then did the employer take immediate and appropriate corrective action?

Simply put, an employer has a legal obligation to stop workplace sexual harassment that it knows about or should have known about.

The law is clear that an individual can sue their employer for sexual harassment even if the individual quit their job. That is because the law recognizes a concept known as constructive discharge.

To establish constructive discharge, an individual must demonstrate that the working conditions were so unacceptable that a reasonable person would feel compelled to resign.

The law requires that individuals who want to file a lawsuit under Title VII of the Civil Rights Act for unlawful sexual harassment must first file with the EEOC a complaint (known as a “Charge of Discrimination”) and complete the EEOC review process. We strongly recommend that individuals hire an employment attorney in connection with the EEOC process to ensure all the appropriate information is provided and appropriate claims asserted.

Depending on the circumstances, there is a 180-day or 300-day statute of limitations on filing a complaint with the EEOC; this means you have 180 days or 300 days from the date harassment occurred to file a claim with the EEOC

After a complaint is filed with the EEOC, the EEOC notifies the employer and provides the employer 10 days to respond. This is a good opportunity to learn the employer’s formal position to allegations of sexual harassment.

More information about the EEOC process can be found here: What You Can Expect After a Charge is Filed | U.S. Equal Employment Opportunity Commission (eeoc.gov)

Once an EEOC investigator has completed the investigation, they will make a finding on the merits of the sexual harassment claim. One of two results is possible:

• If EEOC will state they are unable to conclude that there is reasonable cause to believe that unlawful sexual harassment occurred, the complaining party will be issued a notice called a Dismissal and Notice of Rights. This notice informs the party that he or she has the right to file a lawsuit in federal court within 90 days. The employer will also receive a copy of the notice.
• If EEOC states there is reasonable cause to believe unlawful sexual harassment occurred, the EEOC will issue a Letter of Determination stating that there is reason to believe that unlawful sexual harassment occurred and inviting the parties to join the EEOC in seeking to resolve the complaint through an informal process known as conciliation.

If a lawsuit is filed, it can often take one to two years to complete the lawsuit process, which may include a trial. Formal mediation also generally happens after a lawsuit is filed, providing the parties another opportunity to resolve the dispute before trial.  Most claims of sexual harassment are resolved before trial. If an employer is not willing, however, to provide fair compensation, then a trial can be the best option.

The employment lawyers at Cantrell Astbury Kranz, P.A. have substantial experience with the EEOC complaint process and have a track record of successfully resolving sexual harassment lawsuits on behalf of clients.

Contact us today by calling (877) 858-6868 or emailing us at coordinator@caklegal.com

Damages available for workplace sexual harassment claims depend on the circumstances. Generally, the following categories of damages may be recoverable under federal law:

• Back pay
• Fringe Benefits that would have been received
• Out of pocket costs associated with finding new employment
• Mental anguish
• Attorneys’ fees
• Cost incurred related to the lawsuit
• Punitive damages

Cantrell Astbury Kranz, P.A. has employment law attorneys who are very experienced in representing victims of sexual harassment. For a free consultation, contact us at (877) 858-6868 or coordinator@caklegal.com.