Sexual harassment remains pervasive in the American workplace. One would have to be living under a rock to have missed the multitude of sexual assault and harassment allegations that have surfaced over the last several months. The issue finally came to the fore when multiple women made allegations of sexual assault and harassment against Hollywood producer Harvey Weinstein. The courage shown by the victims of his behavior in sharing their stories has encouraged similar allegations across all types of workplaces, exposing the many powerful individuals who have engaged in inappropriate, and often illegal, sexual behavior.
It is an unfortunate fact that our culture tends to protect harassers and blame victims – many times ignoring sexual harassment altogether. One glaring example is our current president, who faced no repercussions of his alleged harassment and assault of numerous women, despite the infamous Access Hollywood tape in which he described how he has sexually assaulted women. Allow us to remind you of his admission: “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything. […] Grab them by the p***y. You can do anything.”
We have seen this dark side of our culture flare up in Colorado, where at the State Capitol lawmakers have been accused of sexual harassment. On a local level, a Durango restaurant had a restroom sign posted that depicts a stick-figure man lifting the skirt of a stick-figure woman. While some see the sign as humor, others take offense. This type of imagery helps promote, even if unintentionally, a culture of harassment.
Most of the allegations in the news have been related to sexual assault and sexual harassment in the workplace, and the allegations show a pattern of men exercising their power over subordinate women through unwanted, inappropriate sexual conduct or comments. As stated above: sexual harassment remains pervasive in the American workplace. It happens to people every day who do not have a national platform from which to accuse their harasser. Sexual harassment happens to people of all genders, sexual orientations, races, and religions. Although men have made the news recently as the harassers, women can (and do) perpetrate unwanted sexual advances on others as well. Regardless of the characteristics of the harasser or the harassed, experiencing unwanted sexual advances has a deep and lasting emotional impact.
Below is an outline of the legal foundation for sexual harassment claims in the workplace and the steps to take if you are experiencing this type of treatment.
Statutory Law
Title VII of the 1964 Civil Rights Act states: “It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin […].” Federal courts have recognized two types of harassment stemming from Title VII: quid pro quo and hostile work environment, explained in more detail below. In Colorado, the Colorado Anti-Discrimination Act (CADA) is similar to Title VII and states, “It shall be a discriminatory or unfair employment practice: For an employer to […] harass during the course of employment, […] because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry.” (C.R.S. § 24-34-402)
Types of Harassment
Quid pro quo sexual harassment occurs when a supervisor solicits sexual favors from a subordinate in exchange for work-related benefits or under the threat of negative work consequences if the employee fails to comply. Quid pro quo sexual harassment claims require the employee to prove that a supervisor requested a sexual favor, the subordinate employee rejected the request, the supervisor took adverse action against the subordinate, and the subordinate’s rejection of the request caused or motivated an adverse employment action. See, e.g., Moser v. MCC Outdoor, L.L.C., 256 Fed. Appx. 634, 642 (4th Cir. 2007).
Hostile work environment sexual harassment claims are the most common claims. For a hostile work environment claim, the employee must show that the harassment was unwelcome, that it was because of gender, and that it was severe or pervasive. These standards, while seemingly simple, entail complex legal analysis to determine whether sexual harassment rises to a level that gives a victim standing to bring a lawsuit.
IF YOU HAVE EXPERIENCED HARASSMENT
1. Report the Harassment
It is crucial for anyone who has experienced harassment of any kind at their place of employment to report the harassment as soon as possible, and to report it each time it occurs. Before reporting, employees should always begin by looking for and following their employer’s internal anti-harassment policy, if one exists.
The Equal Employment Opportunity Commission (EEOC) has produced a helpful step-by-step guide for what to do if you are being harassed at work. You can find the full EEOC guide by clicking here. Here is a summary:
- If it is safe: Tell the person who is harassing you to STOP.
- Report the harassment each time it occurs, regardless of whether the person has stopped harassing you or not. The law protects you from retaliation for complaining about harassment.
- Check to see if your employer has a policy for reporting harassment (an "anti-harassment" policy).
- If there is an anti-harassment policy, follow the steps in the policy.
- If there is not an anti-harassment policy, talk with a supervisor.
- If your supervisor is the person harassing you, report the harassment to any other supervisor.
- Confirm your conversation with a supervisor in writing with a follow-up email (or a text if email is not possible).
- Contact an employment lawyer.
2. Take Care of Yourself
If you live in Southwest Colorado, community resources like Sexual Assault Services Organization (970) 259-3074 and Alternative Horizons (970) 247-9616) can help if you want to talk to a trained professional for free. Each of these organizations has confidential 24-hour crisis hotlines. Take advantage of these or other counseling services in addition to taking the steps above.
CONCLUSION
While sexual harassment often conjures images of 1950s workplaces and low-budget, outdated anti-harassment training videos, the unfortunate fact is that sexual harassment is alive and well in American culture and in the American workplace. If you experience any sort of workplace harassment, call an employment lawyer. You can find a full directory of Colorado Plaintiff’s Employment Lawyers by clicking here. This directory will help you find a Colorado employment lawyer who practices nearest you.
This blog is not intended as legal advice; it is intended as general guidance and can vary depending on the specific facts of your situation. Contact an employment lawyer if you have experienced harassment at work.