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What is Sexual Harassment?

Sexual Harassment is a form of discrimination based on one's gender and includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature 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.

Types of Sexual Harassment
Identifying Sexual Harassment
Behavior Considered to be Sexual Harassment
Indirect Harassment
Why Consult an Attorney
Steps to Take if Harassed
What to do if Nothing Changes
Retaliatory Acts
Time Limits on Complaints
Filing a Complaint

Two main types of Sexual Harassment:

  • Quid Pro Quo: When decisions regarding employment are promised, threatened or made based on whether or not one or more employees will submit to sexually-oriented conduct. Quid Pro Quo harassment is a very broad category encompassing more than blatant threats such as "if you want this job/promotion/reassignment/vacation time, you'll have to sleep with me."
  • Hostile Work Environment: Where sexually-oriented conduct creates an offensive and unpleasant working environment.

Identifying Sexual Harassment

Sexual harassment can occur in a variety of circumstances, including, but not limited to, the following:

  • The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee, although ordinarily, a harasser will be someone in the company in a higher supervisory capacity than the victim.
  • The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
  • Unlawful sexual harassment may occur without economic injury to the victim or loss of employment.
  • The harasser's conduct must be unwelcome.
  • Sexual harassment does not have to occur between members of the opposite sex.
  • Either gender can be a victim of sexual harassment or the harasser.

Types of Behavior Considered to be Sexual Harassment:

Courts and government agencies have found the following types of conduct to be illegal sexual harassment:

  • Repeated sexual innuendo, obscene or "off-color" jokes, slurs, lewd remarks and language, other offensive sexual comments.
  • Content in letters, notes, facsimiles (faxes), e-mail, graffiti that is of a sexual nature or sexually abusive.
  • Sexual propositions, insults, threats.
  • Sexually-oriented demeaning names.
  • Persistent unwanted and unwelcome sexual or romantic overtures or attention.
  • Leering, whistling, other sexually suggestive sounds or gestures.
  • Displaying pornographic pictures, calendars, cartoons, other sexual material in the workplace.
  • Coerced or unwelcome touching, patting, brushing up against, pinching, kissing, stroking, massaging, squeezing, fondling, tickling.
  • Subtle or overt pressure for sexual favors.
  • Coerced sexual intercourse (e.g. as a condition of employment or academic status).

Indirect Harassment: Sexual Comments to Others Can Still be Considered Harassment

Even if comments are not made directly to you, they can still be considered sexual harassment. Recently, a court in New York held that the plaintiff experienced a hostile work environment as she was exposed to sexual harassment due to the fact that it was happening to others around her and she complained about it to her supervisor—even though she herself was not "sexually harassed."

Why You Should Consult an Attorney with a Sexual Harassment Claim

It is always a good idea to consult an expert for advice before submitting a sexual harassment claim. An experienced attorney:

  • May be able to get an employer's attention so the offending practice is stopped.
  • Can give you specific guidance as to what you should be doing to document your claim (create a paper trail) and protect yourself against retaliation.
  • May help you file a complaint with the EEOC or an appropriate state or city agency.
  • Can help you protect your rights should there be a court case.

Additional Steps to Take if You're Being Sexually Harassed

  • Directly inform the harasser that their conduct is unwelcome and must stop.
  • Examine your company's sexual harassment policy.
  • If no policy exists, consider going to your supervisor or to the supervisor of the person harassing you.
  • File a complaint according to your company's policy.
  • Follow up on your complaint so you understand how/if your employer is addressing the issue and you don't risk losing your claim.
  • File a complaint with the appropriate government agency (see our downloadable form to file a complaint with the EEOC).

What to Do if You Follow All the Rules but Nothing Changes

If no satisfaction is reached through your company's internal complaint procedures you should contact an attorney (if you have not already done so). Alternatively, you should contact the EEOC or other relevant state or city administrative agency in order to preserve your rights and move forward with your complaint. In New York, the New York State Division of Human Rights (NYSDHR) and the New York City Commission on Human Rights (NYCCHR) are the relevant state and city agencies.

Retaliatory Acts: What to do if You Follow the Rules and are Punished or Fired

It is illegal for an employer to retaliate against an employee who has made a complaint of sexual harassment, discrimination or hostile work environment. It is interesting to note that courts have held that a retaliation claim may exist even if it is proven that the original claim was not valid if a) the employee who made the complaint believed it to be valid and b) the employee suffered an adverse employment action due to the invalid complaint. If you suspect you have been made to suffer as a result of filing a complaint, consult an attorney.

Time Limits to Make an Administrative Complaint

In many places, there are time limits within which you must file a complaint. In New York, the filing period is 300 days. Any acts that occurred more than 300 days prior to the date you file your complaint with the EEOC, the New York State Department of Human Resources or the New York City Commission on Human Resources will not be considered by the agency in their review of your complaint.

And if these acts are outside the time limit (considered "prior acts"), this may affect whether or not they may be considered by a Federal Court should you file a Federal lawsuit subsequent to your EEOC filing. It is possible that these acts would not be considered by that court, unless the prior acts are deemed to be "continuous discrimination." However, it is possible that as long as a State Court lawsuit is filed within three years, you will be able to go forward in that venue.

Filing a Complaint

If you've been the victim of sexual harassment and have been unsuccessful in your attempts to resolve your dispute, you may want to consider filing a complaint with the appropriate government agency. In New York, the agencies to contact include: