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.
- Are jokes with a sexual punchline enough?
- What about the questions at lunch about your sex life?
According 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. But 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 regulations of the Equal Employment Opportunity Commission (EEOC) define sexual harassment as:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes 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.
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.
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, you need to file a complaint within 6 months of the date the discrimination happened. To preserve a federal claim, you typically need to file within 180 days. However, because the CCRD enforces a Colorado anti-discrimination law that prohibits sex discrimination on the same basis as Title VII, the federal deadline extends to 300 days.
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.
If You Have An Employment Issue, We Can Help
Navigating the ins and outs of an employment case can be extremely difficult to do without legal counsel. Livelihood law is here to help. Contact us to discuss your matter with one of our experienced employment attorneys.