When Does Sexual Harassment Get Serious Enough for a Lawyer
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When Does Sexual Harassment Get Serious Enough for a Lawyer

It may start out as a tease or a joke, but someday you come to realize that this seriously jeopardizing your ability to function.

The Law

Sexual harassment is part of the general prohibition against discrimination on the basis of gender under the Equal Employment Opportunity Act. Harassment can include unwelcome sexual advances, requests for sexual favors, and other forms of harassment of a physical nature. Although laws surrounding sexual harassment exist, they do not prohibit teasing, offhand comments or minor isolated incidents. They are not part of a “general civility code.” The civil rights, equal employment side of the law does not kick in until the harassment is so frequent and severe that it creates a hostile or offensive work environment that impedes equal opportunity. The call to label a pattern of behavior as sexual harassment can be difficult under many circumstances.

Barriers to Enforcement

The most important barrier to the enforcement of sexual harassment law is the reluctance of victims to report it. An older (1991) study suggested that twenty years ago over 50 percent of female victims believed that nothing would come of making a complaint and an equal percentage believed that they would be blamed for the sexual harassment. Recent revelations about sexual harassment in high profile workplaces suggest that a new enforcement boldness might be emerging. The key is that enforcement of sexual harassment law requires the active participation of the victim. The pressures against victims come forth to make a complaint in an ambiguous and risky legal environment must be enormous.

Even with the recent #MeToo revelations, when you ask why wasn’t the harassment reported sooner, the answers are the same as 25 years ago, The victims didn’t think anyone would believe them, They didn’t think it was “bad enough” to warrant an HR complaint. They believed that making a complaint would “torpedo their careers.” In addition, the reporting process is not unambiguous. Many people don’t know how to report it, what steps to take, how to document, and to whom they should direct their grievances.

Civil Action

Sexual harassment does not fall under the criminal code. It typically requires civil action in the form of a lawsuit to obtain compensation or redress. Only if the harassment involves serious physical touching, physical intimidation, or even extreme forms of coercion can it turn into sexual assault which is a serious criminal matter.

Sexual harassment claims under the civil code are frequently difficult to prove in court. The evidence rarely includes more than statements by the victim and the aggressor.  If the court is convinced that the harassment has caused a hostile work environment, the employer has to be given a chance to cure the problem. Although sexual harassment lawsuits may be difficult to prosecute, these cases will be made part of the public record and will follow the aggressors around for life. In the current social climate, the accusations of sexual harassment have had serious impact on those accused.

Approaching the Problem

Employment lawyers may say that sexual harassment options may range from a simple “knock it off” all the way to a lawsuit. The ideal outcome is when a forthright conversation with the harasser is enough to stop the problem. Harassers have been known to retaliate against accusers, often not openly. At some point the victim might want to begin to escalate the complaint internally and in writing. All documentation should be kept and filed to be used in evidence if a court case should emerge. Begin by following any prescribed corporate HR procedures. To senior managers or human resources officials explain what is happening and how it is affecting your work. Make sure to keep all these contacts in written form on your own personal computer or device including dates.

Aiman-Smith & Marcy is dedicated to upholding your rights. Please contact us for a free consultation about your harassment issues.