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SPLF Employment Blog

Sexual Harassment

Does your supervisor have a habit of promoting people who are less qualified than you are into positions for which you have applied? Does he make jokes about the competence of women and how they perform at work? Federal laws (and some state laws) make it illegal for employers to deny benefits to someone solely on the basis of sex. The law applies to both men and women. For instance, it is illegal for a supervisor — man or woman — to hire or promote only women. Sometimes sex discrimination is clearly stated, such as when a manager says, “I don’t like to have men as employees.” Other times it is more subtle. For instance, if a woman applies for a promotion five times and each time it is given to a man, with few qualifications, she may have been a victim of sex discrimination. At The Spiggle Law Firm we help people subject to sex discrimination, and we do our best to make sure they receive the recognition they have earned.

Federal Law

Title VII of the Civil Rights Act makes it illegal to discriminate against a person on the basis of sex. Courts have also found that it is sex discrimination under Title VII when there is a hostile work environment based on sex. The Supreme Court has held that to constitute a hostile work environment, the harassment has to be “severe or pervasive such that it alters the conditions of [the victim’s] employment and create[s] an abusive working environment.”

Courts in the Fourth Circuit (which includes federal court in Virginia and Maryland) have been restrictive in what they call “severe or pervasive.” That means the conduct has to be really bad for a court to find that what happens constitutes a “hostile work environment” under federal law. A joke here and there or a co-worker asking someone out on a date will not be enough. However, a single instance — particularly if it involves touching of genitals or someone demanding: “you have sex with me or else” — can constitute an illegal hostile work environment. Also key is the position of the person conducting the harassment. If it is a co-worker without any authority over you, then the conduct must be really bad. If it is your boss, on the other hand, courts are more likely to find that poor conduct constitutes a hostile environment based on sex.

You should report sexual harassment if your company has a policy on reporting

If you are being harassed at work, the first thing to do is to see if your company has a system for reporting harassment. They probably don’t make it a secret if they do. That’s because the company can use the existence of such a program as an “affirmative defense.” The Supreme Court held in two cases, Faragher and Ellerth, that an employer gets off the hook for sexual harassment if it can show that it made a “reasonable” effort to stop and correct sexual harassment, and second, that the employee unreasonably failed to participate in the company’s system for reporting harassing behavior. This means that even if you experience terrible harassment from a co-worker, in some instances, you cannot successfully sue the company if you fail to report it. There are exceptions to the defense, the primary one being that you had a “reasonable” reason for not reporting. It would have to be something other than, “I didn’t feel like it would work.” But, it likely would be reasonable not to report if you had used the system in the past and had experienced retaliation.

If your company has 15 or fewer employees

If your company has less than 15 employees, you are not protected by federal laws prohibiting sexual harassment. (Note that federal law is expansive when considering what constitutes an employee. Part-time employees are included. If two companies have the same owners, often courts will determine that employees from each entity should be added together.)

You may be protected by state law. For instance, the District of Columbia and Maryland have state laws that apply. Unfortunately, Virginia does not — at least not one that can really help you. For instance, employees in Virginia who work for a company with less than 15 employees do not have very many good options to fight sexual harassment or hostile work environment. That does not mean that options do not exist. For instance, unwanted touching in Virginia can be illegal under assault and battery laws. It is also illegal in Virginia, regardless of how many employees a company has, to demand sex as a condition for keeping a job. Regardless of which laws do or do not apply, you should talk to an attorney if you are being harassed at work. It’s wrong. An attorney can help you determine what laws can protect you.

Our Success

The Spiggle Law Firm has successfully handled many sexual harassment matters, under both federal and state law. Several of these involved settlements before even filing a lawsuit. Even in cases where a strong lawsuit was not possible, The Spiggle Law Firm has negotiated on behalf of women to help them leave a company gracefully, with a monetary settlement. Please give us a call to see if we can help you, 202-449-8527.

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