Helping Women and Men Who Have Been Harassed at Work
You have the right to be free from sexual harassment in the workplace. The Cleveland attorneys at Bolek Besser Glesius LLC have experience helping many victims of workplace sexual harassment protect themselves and get justice.
Protecting the Rights of Ohio Employees
Under Title VII of the Civil Rights Act of 1964, it is an illegal form of employment discrimination to harass an employee because of her or his sex. Chapter 4112 of the Ohio Revised Code contains a similar ban on sexual harassment. Sexual harassment is generally defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the workplace when that conduct falls into one of two categories.
The first is “quid pro quo” harassment, which occurs when employment action is based on whether or not an employee will submit to sexual conduct. For example, if a supervisor says, “Sleep with me or you’re fired,” and then fires the employee for refusing, that would be illegal sexual harassment. In many cases, the harassment will be subtler than that. Nevertheless, an employer may not condition the receipt of some benefit (like a promotion or a raise) or some negative action (like a suspension, demotion, or firing) on an employee’s willingness to submit to unwelcome sexual conduct.
The second is what is commonly known as “hostile environment” sexual harassment. This type of harassment includes unwelcome sexual comments or other sexual conduct that has the purpose or effect of unreasonably interfering with an employee’s ability to do the job, or that creates an intimidating, hostile, or offensive working environment. The harassment typically takes a variety of different forms, including but not limited to:
- Offensive sexual jokes, slurs, epithets, or name calling;
- Sexual assaults, groping, or touching;
- Sexual remarks about a person’s physical appearance or attire;
- Intimidation, ridicule, or mockery;
- Exposure to offensive objects or pictures; or,
- Anything else that unreasonably interferes with work performance.
To be illegal, the conduct must be severe or pervasive. Petty slights, annoyances, and isolated incidents (unless they are severe) will not typically be considered unlawful sexual harassment. The determination of whether a particular situation rises to the level of hostile environment sexual harassment must be made on a case-by-case basis.
Both men and women can be a harasser or a victim of sexual harassment. A harasser might be the victim’s supervisor, co-worker, a supervisor or management employee from another area of the company, an executive of the company, or even a third party such as a customer or client. Under certain circumstances, a harasser might even be the same sex as the victim.
A series of cases from the Supreme Court have developed different sets of rules to determine whether an employer will be liable for sexual harassment in a particular case. As a result, employer liability in harassment cases is a complex question that requires guidance from an experienced attorney.
When the harasser is a supervisor, whether the employer will be liable depends the type of harassment involved. If the harassment results in a negative employment action such as hiring, firing, failure to promote, reassignment with significantly different responsibilities, or another decision causing a significant change in benefits, the employer is automatically liable, assuming the employee proves the harassment occurred. If the harassment instead resulted in a hostile work environment, the employer has an affirmative defense. In that situation, the employer can avoid liability by proving that it exercised reasonable care to prevent and promptly correct harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Under the 2013 U.S. Supreme Court case Vance v. Ball State University, a “supervisor” for the purposes of harassment cases includes only those individuals “empowered by the employer to take tangible employment actions against the victim.” If the harasser does not qualify as a supervisor, then employer liability is determined by the rules governing co-worker harassment. When the harasser is a co-worker, the employer will be liable only if it was negligent in allowing or failing to stop the sexual harassment. Essentially, the question is whether the employer took reasonable steps to prevent sexual harassment in the workplace.
In certain circumstances, an employer might also be liable for sexual harassment by third parties, for instance, customers or clients. When the harasser is a non-employee, the employer’s liability depends on whether it knew or should have known of the conduct and failed to take immediate and appropriate corrective action. That determination depends, in part, on the extent to which the employer had the ability to control the third-party harasser, as well as any other circumstance suggesting the employer should have legal responsibility for the conduct of the harasser.
Getting Justice for Victims of Sexual Harassment
Victims of sexual harassment are entitled to a variety of remedies designed to put them in the same position as though the harassment did not occur. Those remedies might include lost back pay, front pay, and other out-of-pocket expenses incurred as a result of the harassment. The employee can also recover compensatory damages for emotional distress caused by the harassment. Both Ohio and federal law also permit the employee to recover punitive damages against the employer in some circumstances, designed to punish malicious conduct and deter others in the future. In addition, victims of sexual harassment may be able to recover their attorneys’ fees and the costs of pursuing their rights in court.
Protecting Employees who Report Sexual Harassment
There are many reasons why victims do not report it. Some of those reasons include feelings of guilt or shame, or even denial. Another common reason is fear of retaliation. However, the laws that outlaw sexual harassment also outlaw retaliation against individuals who have opposed or reported sexual harassment in the workplace.
Both Title VII and Ohio Revised Code Chapter 4112 provide a separate cause of action for employees who are retaliated against for making good faith complaints of sexual harassment in the workplace. When an employee reports or otherwise opposes sexual harassment, an employer may not take any negative action against the employee as a result, if the action taken would dissuade a reasonable person from coming forward in the future. It is important to note that the employee’s report need not actually be proven correct to be protected from retaliation. As long as the employee makes a report in good faith, the employee is protected. In fact, because a retaliation claim is a separate cause of action, in some cases an employee might prevail on such a claim, even if he or she cannot prove sexual harassment occurred.
It can take courage to report sexual harassment. But you should report it. Not only does the law protect you from retaliation if you do, it might not protect you if you don’t. And you cannot expect the harassment to stop unless you take action. Most sexual harassers will continue their behavior until someone stops them. In some cases, the harasser’s conduct will get worse over time if allowed to continue. Moreover, you might not be the only victim. It is not uncommon for harassers to move from one victim to another because nobody stops them. At some point, someone has to speak out.
Cleveland, OH Employment Law Attorneys
You don’t have to tolerate sexual harassment in the workplace. Contact us today or request a free consultation. Our firm can help with cases involving sexual harassment and even sexual assault in Cleveland, Lorain, Akron, and throughout Northeast Ohio. We will be there for you throughout the entire process, working to protect your rights and obtain the best result for your unique situation.