A Touch Too Far: Understanding Sexual Harassment Laws And Legal Protections

No employer wants to be sued for sexual harassment, and no employee wants to work where it is tolerated. As a result, everyone should understand sexual harassment laws and their nuances. This article presents an overview of some of the most important topics and details any employer needs to understand, including:

• What part of the law sexual harassment falls under (hint, it is not the one you are thinking of)
• The two types of sexual harassment claims and how to stop them.
• The protections placed on victims of sexual harassment against workplace retaliation.

What Law In The US Addresses Sexual Harassment In The Workplace?

To understand sexual harassment law, you have to dive into its history. When you do, you discover that most of it emerges not out of protections from assault or criminal sexual conduct but from protections against workplace discrimination. These come into play at two levels of law, federal and state.

First, you have federal case law and federal statutes, notably Title VII of the Civil Rights Act, found in 42 USC Section 2000 et seq. That is the federal law that controls all discrimination, which, including sex discrimination.

Each state has its own laws and state courts, and in the State of Washington, our law against discrimination is found in CW 49.60. It also includes sex discrimination, which courts and gubernatorial resolutions and mandates have repeatedly found to include sexual harassment.

What Are The Key Elements And Types Of Sexual Harassment Under The Law?

Sexual Harassment is considered a form of sex discrimination, it only applies to a “protected class.” This means that you must show you are either vulnerable or adversely impacted by an act because of your sex. Some other additional misconceptions and details are important to understand. Sexual Harassment can:

• Be very overt or subtle in nature. The main component of sexual harassment is that the acts must be unwelcome. If the acts are consensual, one could argue that they are welcome and do not constitute sexual harassment.
• Also include inappropriate promises or quid pro quo. e.g., If a boss or manager offers a raise or promotion in return for sexual acts or favors
• Be physical, unwanted touches, or verbal comments.
• Occur even to men. There are cases where women in a position of power take advantage of men in non-traditional jobs, and often, men are too embarrassed to come forward because of the gender ramifications or impressions.

The Legal Concept Of Reasonableness

One of the trickiest and most hotly debated topics in sexual harassment law revolves around the “reasonableness standard.” In many areas of law, a judge will ask a jury to determine if what was done was “reasonable” for an average person…but that runs into complications with such a subjective topic as sexual harassment.

In theory, reasonableness is defined as what a reasonable person would do or feel. It should also include any relevant gender or social norms and pertinent perspectives or sources of inequality.

Unfortunately, this ends up making it somewhat of an impractical tautology, in that the word, “reasonable” is used to define what reasonableness means. What it really boils down to asking a jury or judge what they as reasonable person(s) would expect or do under those same circumstances.

For example, someone might laugh when their bra strap is pulled on while another might slap the perpetrator. Which one is the reasonable reaction? Perhaps both? All one can do is look at the facts and nature of what is being charged and consider if, under all the same circumstances, what would have been a reasonable reaction.

Some people may react by laughing; others may react by being quiet. It could even depend on upbringing or culture. If someone is taught to respect those who are older or respect those of a certain sex, they might not challenge something someone else with a different upbringing would, as someone who might have slapped the person in the same circumstances.

Thus, to establish reasonableness, circumstances, and details, the perspective of a skilled and experienced attorney is essential.

What Are The State And Federal Statutes Of Limitation For Filing A Sexual Harassment Claim?

Luckily, in Washington state, the federal and state level deadlines for filing for sexual harassment are the same. You have three years to file the cause of action after an incident.

However, in federal court, you must secure a Notice of Right to Sue Letter from the Equal Employment Opportunity Commission. Once you have gotten that notice, you will have 90 days plus reasonable mailing time from the date of that notice to file a lawsuit in federal court. A better practice is to have your federal law suit filed within 90 days from the date that the Notice of Right to Sue Letter was issued.

If you miss that date, the alternative would be to file it in state court as long as you are within the three-year period.

What Legal Protections Prevent Retaliation Against Employees Who Report Sexual Harassment Or Participate In Investigations?

Both federal and state laws protect anyone who is the victim of sexual harassment from any kind of retaliation. The law is unambiguous: you cannot be retaliated against for bringing sexual harassment complaints to the attention of the employer, whether it is a manager, supervisor, or even the CEO of the company.

If someone believes that s/he has been subjected to retaliation, s/he will have another cause of action in addition to the sexual harassment and the hostile working environment causes of action. This could extremely damaging to the company.

Usually, all companies have a personnel policy that makes it very clear that a person who complains about sexual harassment is not to be retaliated against, including various forms of retaliation by adverse action.

• It could occur when you are up for a promotion and now are not being considered.
• When you are not being allowed to apply for a job that you should have been able to obtain.
• If you are prevented from attending crucial meetings that help you perform your job.
• If, all of a sudden, you no longer have an office or are put in a closet without windows.
• Whenever you are put in a position where a reasonable person would not be expected to stay because of how you're being treated.
• If your job duties are being undermined by the actions of HR or a supervisor.

These are all just a variety of examples of how retaliation can be presented as an adverse employment action. Often, they can be tied to promotional advancement or pay.

If you are not getting the pay or refused the promotion you deserve, or are undermined in your ability to supervise or manage others, especially after a sexual harassment complaint, you may have even greater grounds to sue based upon retaliation. Contact an experienced sexual harassment attorney today to discuss your rights and potential compensation. For more information on Laws Addressing Sexual Harassment In The Workplace, an initial consultation is your next best step.