Workplace sexual harassment is an age-old problem that is only recently getting the attention it deserves. Our attorneys have litigated workplace discrimination and harassment cases of all types, including those of a sexual nature.
Sexual harassment in the workplace is prohibited under Federal and North Carolina law. Despite the law the problem persists as illuminated by the rapid growth of the #metoo movement. The law prohibits unwelcome demands or advances of a sexual nature, allowance of a sexually hostile work environment, and sexual battery such as inappropriate and offensive touching, among other things.
If your employer knows you are the victim of unwelcome sexual advances or inappropriate sexual behavior at work, they are required to investigate and take action to protect you. Failure to act could make them legally liable.
Examples of unlawful sexual harassment include:
- Demotion or Termination
- Inappropriate Touching
- Hostile Work Environment
- Harassing Language & Name Calling
- Demands for Sexual Favors
- Unwelcome Sexual Advances
- Exposure to Inappropriate Pornography in the Workplace
Sexual harassment by an employer or supervisor is unlawful, as is the failure of an employer to take appropriate action in response to an employee's complaint of sexual harassment in the workplace. The law also protects victims of sexual harassment from retaliation for their complaints.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex." Title VII applies to claims of workplace sexual harassment. Generally speaking, sexual harassment claims have been separated into "hostile work environment" and "quid pro quo" claims. A hostile work environment occurs when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of a the victim's employment and creates an abusive working environment.
To prove a claim of hostile work environment sexual harassment under federal law, a plaintiff must generally demonstrate that the complained of conduct:
1. was "because of" the plaintiff's sex,
2. was sufficiently severe or pervasive to alter the conditions of employment,
3. was unwelcome; and
4. provides some basis for employer liability (such as knowledge and failure to take reasonable action).
The other commonly recognized form of workplace sexual harassment is known as quid pro quo sexual harassment. An example of this type of sexual harassment is when a supervisor uses his or her actual or apparent authority to explicitly or implicitly condition a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct. To prove such a claim, a victim must demonstrate that they suffered a tangible employment action because they refused a supervisor's sexual demands. The employment decision itself constitutes a change in the "terms and conditions" of employment that is actionable under Title VII.
Simply put, courts have ruled that an employer is liable for harassment by a supervisor that results in a tangible employment action (such as discharge, demotion, or undesirable job assignment). On the other hand, when no such action took place, the employer may be able to defeat liability by showing that they exercised reasonable care to prevent and promptly correct sexually harassing behavior, and that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer, or otherwise avoid harm.
Despite the protections of the law, it is advisable for a victim of sexual harassment to tread carefully. Employment discrimination cases are almost always complicated and fact-specific, even when the law seems favorable. If you are the victim of workplace sexual harassment, contact the experienced North Carolina Employment Law attorneys at Edelstein & Payne. Give us a call at (919) 828-1456, or fill out our employment law inquiry form.