Often, it’s hard to know whether workplace behavior crosses the line into sexual harassment.

This type of harassment is often much more subtle than a boss demanding sexual favors for a promotion, and can even include the following as examples;

  • Are jokes with a sexual punchline enough?
  • What about the questions at lunch about your sex life?

Sexual Harassment WorkplaceAccording to a 2017 ABC News/Washington Post poll, 54% of women reported receiving unwanted sexual advances, with 30% of those women saying it had happened at work. Twenty-three percent reported that their harasser had power over them at work. And, it’s important to note that sexual harassment can happen to both women and men.

Fortunately, both federal and Colorado law offer remedies for those facing sexual harassment in the workplace. Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 and the Colorado Anti-Discrimination Act. See 42 U.S.C. § 2000(e), et seq. (1991); Colo. Rev. Stat. § 24-34-401 (2016).

What is Sexual Harassment?

 The Equal Employment Opportunity Commission (EEOC) regulations offer this definition: “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment.”

Sexual harassment happens when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

This type of harassment usually takes the form of either quid pro quo harassment or a hostile environment sexual harassment. Both forms of sexual harassment are actionable under Title VII, as decided by the Supreme Court case of Meritor Savings Bank v. Vinson. 106 S. Ct. 2399 (1986).

Quid Pro Quo Sexual Harassment

According to EEOC guidelines, “quid pro quo harassment” happens when “submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,” 29 C.F.R § 1604.11(a)(2)-(3). Quid pro quo harassment can happen in various circumstances and can involve just the threat of economic loss. It can also involve the victim’s supervisor, an agent of the employer, a co-worker, a supervisor in another area, or a non-employee.

Some other important points include:

  • The victim doesn’t have to be the person harassed, but anyone affected by the conduct;
  • The harassment must be unwelcome;
  • The victim can be male or female, and the harasser can be male or female; and
  • Harassment can be unlawful even if the victim isn’t economically harmed or fired.

Hostile Environment Sexual Harassment

EEOC guidelines also indicate that unwelcome sexual conduct becomes harassment when “submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment,” 29 C.F.R § 1604.11(a)(1).

Examples of hostile environment harassment can include:

  • Sexual stereotyping and sexist behavior;
  • Sexual or romantic propositions;
  • Unwanted touching;
  • Using derogatory terms, names, or language;
  • Spreading sexual rumors;
  • Criminal sexual contact;
  • Sexually offensive cartoons, calendars, posters, photographs, or other displays in plain view;
  • Harassment by a supervisor, co-worker, or even non-employees like contractors or vendors.

The behavior must be so “severe and pervasive” to give rise to a hostile work environment to be actionable. Isolated incidents and teasing don’t typically constitute a hostile work environment.

What is Workplace Sexual Violence?

Sexual violence in the workplace is a serious matter in the U.S. According to the U.S. Department of Justice, eight percent of all sexual assaults occur while the victim is at work. Sexual violence is a type of sexual harassment, and it typically falls into three categories:

  • Using physical force to compel someone to engage in a sexual act against their will, whether the perpetrator completes the act or not;
  • Attempting or completing a sex act with someone unable to understand the nature of the act or to communicate their willingness or unwillingness to participate because of illness, disability, the influence of drugs or alcohol, or because of pressure or intimidation; or
  • Abusive contact.

Employers are responsible for mitigating the risk of workplace sexual violence, especially because of the power imbalance that often occurs at work between employees and supervisors.

Who is Covered by Sexual Harassment Laws?

Coverage for sexual harassment laws differs between federal and Colorado law. Title VII covers private employers, educational institutions, labor organizations, employment agencies, and state and local governments that employ more than 15 people. However, Colorado’s law is broader in scope. The Colorado Anti-Discrimination Act covers all employers, regardless of the number of employees in the company.

Employer Responsibility for Sexual Harassment

A victim can hold an employer liable for sexual harassment or a hostile work environment if the employer knows about it and fails to correct it. An employer should know about it if:

  • Someone formally complained;
  • Management failed to establish a workplace policy against sexual harassment; or
  • The harassment is open or well known among employees.

 Individual Versus Corporate Responsibility

In many cases, a victim of sexual harassment may sue both the company and the individual, seeking to attribute a supervisor’s actions to the company. Whether you can seek individual liability in addition to corporate liability for sexual harassment varies by state and federal circuit.

  1. Federal Law

Courts across the U.S. vary in their interpretations of whether you can hold an individual liable for sexual harassment under Title VII. In the Tenth Circuit, which includes Colorado, case law has not typically allowed the individual liability of supervisors in Title VII suits. In 1996, the Tenth Circuit Court of Appeals held that couldn’t be held liable individually under Title VII, stating, “taken as a whole, the language and structure of Title VII continue to reflect the legislative judgment that statutory liability is appropriately borne by employers, not supervisors.” Haynes v. Williams, 88 F.3d 898, 891 (10th Cir. 1996).

  1. Colorado Law

Under the Colorado Anti-discrimination Act, however, a suit against an individual may be possible. A supervisor, as a “person” under the law, could be subject to personal liability. An employment attorney well versed in sexual harassment cases can discuss the best strategy with you for bringing suit against both an employer and an individual.

In some cases, a company may try to disclaim liability for sexual harassment or sexual violence in the workplace by claiming the company didn’t know about the harassing behavior. However, if sexual harassment ends in a tangible employment action, the employer is generally always liable. Your employer can’t avoid legal liability by claiming that no one reported your harassment or because they took steps to establish policies prohibiting workplace harassment.

Remedies for Sexual Harassment

There are monetary and non-monetary remedies available for workplace sexual harassment, including:

  • A retroactive promotion;
  • Back pay to compensate you for past wage losses;
  • Hiring or reinstatement;
  • Front pay to compensate you for future wage losses;
  • Compensatory damages for pain and suffering;
  • Punitive damages to punish your employer;
  • Other remedies to get you back to the condition you would have been in but for the harassment.

You may also be able to recover court costs, expert witness fees, and attorney’s fees. In some cases, your employer will also have to take action to ensure the harassment won’t continue in the future, discontinue any discriminatory practices, and post notices to employees regarding the sexual harassment violations.

Protections Against Retaliation

Many employees who file complaints or suits against employers for sexual harassment worry about their employer taking action against them in retaliation. The good news is that both Colorado and Federal laws protect you from retaliation by your employer. See 42 U.S.C. § 2000(e), et seq. (1991); Colo. Rev. Stat. § 24-34-401 (2016). These protections against retaliation include actions such as:

  • Filing a complaint with the EEOC;
  • Filing a complaint with the Colorado Office of Civil Rights;
  • Reporting discrimination or harassment to your employer; and
  • Supporting a co-worker’s discrimination or harassment claim.

If an employer fires you, takes an adverse employment action against you, reducing your pay, or harasses you because of a complaint or lawsuit, you may be able to take action against them.

What Does Harassment Look Like in Real Life?

It can be hard to know what workplace harassment looks like in the real world. Every situation varies, and every person is different. But some unwelcome activities often rise to the level of sexual harassment, including:

  • Comments about your appearance, especially if they are sexual in nature;
  • Conversations, stories, and questions about sex, your sex life, or a colleague’s sex life;
  • Sexist comments, even if they aren’t sexual in nature;
  • Using sex to get ahead at work;
  • Rumors about someone’s sex life;
  • Staring at someone or looking them up and down;
  • Unwanted physical contact;
  • Suggestive conversations, emails, texts, or other communications;
  • Vulgar language or jokes, innuendo, music with sexually explicit lyrics, jokes about gender or sex;
  • Displaying porn or sexually explicit artwork, emails, screensavers, posters, or calendars;
  • Requesting sexual favors;
  • Using pressure or intimidation for sex;
  • Threatening someone based on the rejection of sexual advances; and
  • Sexual assault and rape.

The general rule is that the more egregious the sexual harassing behavior, the less likely it is that you’ll have to show an ongoing series of harassing incidents. A court will sometimes consider a single incident to rise to the level of sexual harassment, particularly if it involves physical harassment or violence.

If you’re unsure if the behavior you’ve experienced rises to the level of sexual harassment, document the behavior, make it clear the behavior is unwelcome, and consult an experienced Colorado employment lawyer. It’s perfectly ok to say, “I don’t want to date you,” or “Please stop talking that way. It’s offensive to me.”

What Should You Do If You Are Experiencing Sexual Harassment in The Workplace?

 If you’re facing this kind of harassment at work, it’s essential to let your employer know right away formally. Don’t assume that they know, or your employer may later argue that they did not know of the harassment and aren’t responsible for failing to remedy the situation.

If your employer doesn’t resolve the problem, you can file a sexual harassment claim with either the EEOC or the Colorado Civil Rights Division (CCRD). The two agencies share information and work cooperatively for investigations. However, the federal anti-discrimination legislation, Title VII, covers only employers with 15 or more employees. Colorado’s legislation covers all employers.

So, you may need to file a state claim if you work for a small employer.

It’s important to act quickly. To preserve a state claim in Colorado, you need to file a complaint within 6 months of the date the discrimination happened. And in Colorado, to preserve a federal claim, you have 300 days to file with the EEOC.

To ensure that you meet all deadlines and to preserve any other claims you may have, it’s essential to discuss your options with a skilled employment law attorney as soon as possible.