Q:
Is this illegal sexual harassment and can the company be liable?
In the wake of the #MeToo movement, it's important to know your rights. Many people believe they know what sexual harassment is, but laws define sexual harassment and employer liability differently. To learn more about illegal sexual harassment, let's explore a fairly simple hypothetical scenario.
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Yes, if: It is unwelcome and “severe or pervasive.” While telling one dirty joke could result in an employee reprimand, it most likely wouldn’t be enough for a legal claim of a hostile work environment on its own. However, because he did it repeatedly, it’s pervasive. Had he groped the employee one time, it would be severe enough. (Glasgow v. Georgia Pacific)
Additionally, the behavior must alter her working conditions for the worse, such as affecting her psychologically or emotionally, and the employer must know or should have known about it but didn’t take action.
Q:
If she doesn’t tell human resources or a manager about the harassment, could it affect a lawsuit?
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Yes. Under state law, if she doesn’t report the bad conduct to human resources or a manager, the employer may not be liable for the actions of a low-level supervisor who doesn’t control pay and working conditions.
Q:
The supervisor said he was just joking. Is the company still liable?
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Yes. The intent of the supervisor does not matter. The court looks at the perspective of the victim and if a reasonable woman would believe the conduct was offensive. (Ellison v. Brady)
Q:
What if, instead of a low-level supervisor telling dirty jokes, the woman’s manager says he might give her a raise if she dances dirty for him or his buddy?
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This is the second form of sexual harassment – quid pro quo. The employer is liable when an employee must endure unwelcome sexual conduct to get job benefits or is treated worse for refusing. This includes the manager’s suggestion that involved a third party such as a friend or client. (DeWater v. State and Schonauer v. DCR Entertainment)
Q:
Can the woman or the co-workers who witnessed the inappropriate jokes be fired for reporting it?
No. The person who reports the harassment is protected from an employer’s retaliation such as pay cut, negative performance review, forced resignation or termination. (Washington Law Against Discrimination and Title VII, Allison v. Housing Authority of City of Seattle)
What's going on here?
Although we often think of harassment in terms of assault, the starting point for sexual-harassment laws at both state and federal levels is elsewhere: According to Meritor Savings Bank v. Vinson in 1986, sexual harassment is actually a form of sex discrimination. Under this view, the creation of a hostile work environment that alters the terms of employment, either directly or indirectly, is illegal.
Further court cases clarified that sexual harassment can take two forms: either quid pro quo, in which job benefits or punishment are tied to sexual favors, or a hostile work environment. In the latter case, there are four elements defined in Glasgow v. Georgia Pacific that qualify:
- The harassment must be unwelcome,
- It must be related to the sex of the victim,
- it must affect the terms of the employment, and
- it must be "imputed to the employer," meaning that they knew or should have known of the conduct, but didn't take action.
Although Washington law and federal law are generally in agreement on what harassment is, there are differences in the timing and penalties that lawyers may consider when filing suit:
- Statute of limitations
- State: Complainant can file the day of the harassment and up to three years from the occurrence.
- Federal: Within 300 days, a complainant must first file EEOC complaint.
- Amount a victim can be awarded in damages
- State: no punitive damages
- Federal: punitive damages, cap based on size of employer
Please note that the information in this article is provided for informational purposes only, and is not legal advice. If you believe you have experienced sexual harassment, be sure to consult a lawyer for advice as soon as possible.