In this column, Cincinnati and Dayton based sexual harassment litigation attorney Craig T. Matthews discusses harassment in the workplace and the potential outcomes of related lawsuits.
Sexual harassment continues to occur in many workplaces. Unfortunately, a number of employers fail to adequately respond to initial complaints. In many cases, lack of prompt, effective action by human resources and management leads to more harassment, which can create a hostile work environment. As a result, employees may be forced to choose between enduring intolerable harassment or resigning from their position.
A Typical Case of Sexual Harassment in the Workplace
Not long ago I represented a young woman in federal court against her former employer, a Fortune 500 company. Two weeks into her employment at a large plant near Dayton, Ohio, a co-worker made lewd and offensive comments regarding her appearance during one of her breaks. She promptly reported the incident to her immediate supervisor. The supervisor promised to take action and allow my client to take breaks apart from the offender,. However; nothing else was done.
This lack of corrective action was seen by other coworkers as a green light to engage in unwelcome conduct. Soon my client was subjected to a multitude of additional harassment from both coworkers and superiors. Fearing that going above her immediate supervisor’s head would lead to negative consequences, she silently endured. The harassment increased in both its severity and frequency, and my client ultimately determined that resigning was the only way to end the harassment.
What is Sexual Harassment in the Workplace?
Sexual Harassment can take a variety of forms, including:
• Sexually offensive or explicit comments, jokes and questions.
• Degrading or sexual physical conduct.
• Sexual propositions or advances.
• Obscene acts or gestures.
• Obscene or explicit photos or literature within view of employees.
Sexual Harassment Cases: Legal Claims
If you or a loved one has been the victim of sexual harassment in the workplace, it is crucial to first notify your supervisor or human resources and document the incident in writing with proof of delivery (e.g., fax log or email). If no action is taken following your written report, or if you are instead disciplined or terminated, you should immediately contact a lawyer experienced with sexual harassment litigation. The attorney can help you recover damages suffered as a result of the harassment.
Sexual harassment is considered a form of discrimination based on sex. Since in the case above my client resigned from her position, the first task was to prove that she resigned as the direct result of such discriminatory acts and that the failure to act by management made working conditions so intolerable that any reasonable person would have resigned. In order to prove such a claim, you must have evidence that:
• The victim was subjected to unwelcome harassment.
• The harassment was based on gender.
• The harassment was sufficiently severe or pervasive to unreasonably interfere with the victim’s work performance and created a hostile work environment.
• The employer knew or should have known of the harassment and failed to implement prompt and appropriate corrective action.
If the victim is successful in a lawsuit for claims of sexual harassment, the court will order the defendant to pay damages. Damages typically include compensation for lost wages and emotional distress. The judge or jury may also require the defendant to pay the plaintiff’s attorney fees and in rare occasions, punitive damages. In Arizona v. ASARCO, a young woman who was subjected to harassment and eventually was wrongfully terminated was awarded $300,000 in punitive damages. State of Arizona v. ASARCO LLC, 773 F.3d 1050 (9th Cir. 2014).
What to do if you or a Loved One is the Victim of Harassment in the Workplace
If you or a loved one is the victim of harassment in the workplace, it is important to contact an attorney experienced with sexual harassment litigation immediately to help guide you through the process. It is also critical to document, in writing, your report as to the date, time, people involved, and descriptions of any incidents. If a verbal report is made to a supervisor or human resources person, it should be promptly followed up by a confirming email or fax. If it is not in writing and if you cannot document delivery of the writing, an employer can easily deny it was ever received.