In recent months, there has been a huge surge of sexual harassment accusations levied against a number of powerful men in our society. These accusations have rocked many industries including sports, entertainment, and more recently the legal field. The accusations were soon followed by a rallying cry, and the #MeToo movement was started. This #MeToo movement is a way that men and women across the country can both express their solidarity with victims and publicly announce that they too have been victims of sexual harassment. The momentum of the #MeToo movement is causing a major shift in the way society views victims of workplace sexual harassment.
In 1964, Congress passed Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits workplace discrimination based on sex, race, color, national origin, and religion and is aimed at employers with 15 or more employees. Sexual harassment has been determined to be a form of sexual discrimination that clearly violates the federal law. The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcomed 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.” 29 CFR § 1604.11.
There are two types of sexual harassments: quid pro quo and hostile work environment. Let’s first explore quid pro quo sexual harassment. The Latin phrase “quid pro quo” means an exchange of something for something. In an employer/employee context, quid pro quo sexual harassment takes place when a superior (i.e. supervisor, manager, or other person of power) makes sexual favors a condition of one’s employment. This type of sexual harassment usually comes with promises of job benefits or threats of retribution if the victim does not comply with the superior’s overtures.
Other examples of quid pro quo harassment are positive or negative work assignments, promotions or demotion, and positive or negative performance reviews either in exchange for sexual favors or as punishment for refusing to comply with a superior’s demand for sexual favors. The 11th Circuit has held that for an employee to be successful in advancing a quid pro quo sexual harassment theory, the Plaintiff must prove the following elements:
• the employee belongs to a protected group;
• the employee was subject to unwelcome sexual harassment;
• the harassment complained of was based upon sex; and
• the employee’s reaction to harassment complained of affected tangible aspects of the employee’s compensation, terms, conditions, or privileges of employment.
Additionally, a corporate Defendant will be held strictly liable for a superior’s action under the quid pro quo harassment theory.
The second type of workplace sexual harassment theory is hostile work environment. Hostile work environment sexual harassment occurs when an employer alters an employee’s job conditions because of the employee’s refusal to submit to sexual demands. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 65, 106 S. Ct. at 2405 (1986). A hostile work environment due to sexual harassment often manifests itself through severe and pervasive explicit jokes, constant demands for sexual favors, racy or crude comments, or even by sharing inappropriate text messages or images. These utterances and/or demands are often so severe that it becomes difficult for an employee to comfortably go about his/her work. For a Plaintiff to be successful in advancing a hostile work environment theory the Plaintiff must prove the following:
• The employee belongs to a protected group;
• The behavior was severe or pervasive;
• The harassment complained of was unwelcomed; and that
• The employer knew or should have known about the harassment but failed to take prompt, corrective action.
Historically, sexual harassment claims have been difficult cases to win. In times past, the victim’s credibility has been put on trial instead of the perpetrator’s wrongful actions. Because of this reality, many victims are reluctant to report the offensive behavior. As more victims of sexual harassment come forward, we are seeing a shift in society’s perspective on this issue.
If you think you have been a victim of workplace sexual harassment, it is important to seek the immediate advice of an employment lawyer. You can contact Larry Golston or Leon Hampton, lawyers in our firm’s Consumer Fraud & Commercial Litigation Section, at 800-898-2034 or by email at Larry.Golston@beasleyallen.com or Leon.Hampton@beasleyallen.com.