Sexual Harassment Legal Help:Quid Pro Quo, Hostile Work Environment, and Recovery for Victims

Employment terms or benefits are tied to unwelcome sexual conduct. Examples: supervisor demanding sexual favors as condition of promotion, supervisor threatening termination if employee refuses sexual advances, supervisor offering raise in exchange for date. Quid pro quo can be subtle or explicit. Generally only by supervisors with authority over employment terms.

Unwelcome conduct based on sex that is severe or pervasive enough to alter the conditions of employment and create an abusive working environment. Conduct can be by supervisors, coworkers, or third parties (clients, customers, vendors). The most common form of sexual harassment claim.

Title VII covers same-sex harassment per Oncale v. Sundowner Offshore Services (1998). Conduct does not need to be motivated by sexual desire; can be based on hostility to gender.

Verbal: jokes, comments, propositions, repeated requests for dates. Physical: touching, hugging, pressing, blocking. Visual: gestures, displays, gifts. Electronic: emails, texts, social media messages. All can support claims when severe or pervasive.

Conduct must be unwelcome to the recipient. Voluntary participation defeats claim, but distinction between voluntariness and welcomeness is critical (employee may participate while unwelcome to keep job).

Conduct must be based on sex (or gender). Bostock established sexual orientation and gender identity protection. Conduct that is equally offensive to both sexes typically not actionable.

Sexual orientation and gender identity harassment is sex discrimination under Title VII per Bostock v. Clayton County (2020). LGBTQ+ employees protected federally.

Employer is strictly liable. No defense. Tangible employment action: termination, demotion, denial of promotion, significant pay reduction, transfer to substantially worse position. Burlington Industries v. Ellerth (1998).

Employer is liable but has Faragher/Ellerth affirmative defense available. Defense requires: (1) employer exercised reasonable care to prevent and correct harassment, (2) employee unreasonably failed to take advantage of preventive or corrective opportunities provided by employer.

Employer liable if knew or should have known of harassment and failed to take prompt and effective corrective action. Negligence-based standard. Employee complaint typically required to establish notice.

Employer liable for harassment by clients, customers, vendors when knew or should have known and failed to take corrective action. Lower threshold for liability than coworker harassment in some courts.

Two prongs both required. Prong 1 (employer's reasonable care): published policy prohibiting harassment, complaint procedure with multiple reporting paths, training, prompt investigation, effective remedies. Prong 2 (employee's unreasonable failure): typically failure to use available complaint procedure. Failure to complain is critical.

Ball State University. Supreme Court limited 'supervisor' definition. Only those with authority to take tangible employment action are supervisors for Title VII liability purposes. Lower-level employees with day-to-day direction but no termination authority typically not supervisors.

Some cases involve both tangible and non-tangible harassment. Tangible action triggers strict liability; non-tangible action subject to defense. Cases require careful framing.

California FEHA covers employers with 5+ employees for harassment (1+ for retaliation). New York HRL covers 4+. Massachusetts 6+. Many smaller employers covered by state law not federal.

California FEHA: 3 years to file with DFEH. New York: 3 years for harassment claims (post-2019 amendments). Most states longer than federal 180/300 days.

California prohibits harassment regardless of severity (single incident can qualify under FEHA after 2019 amendments). New York similar approach. Federal severe-or-pervasive standard often higher than state standards.

California, New York, Washington, others prohibit non-disclosure agreements covering harassment in settlements. Limits use of confidentiality to silence victims.

Many states require employers to provide harassment training. California requires interactive training for supervisors and employees. New York mandates annual training. Specific requirements vary.

Federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (2022) prohibits pre-dispute arbitration agreements for sexual assault and harassment claims. State laws may provide additional protection.

California, New York, and other states allow personal liability against individual harassers (not just employers). Federal Title VII does not. Personal liability significantly expands recovery options.

Multiple bills 2019-2023 extended limitations period, expanded protections, prohibited NDAs, required training. CFEHA most employee-protective in country.

Significant amendments 2018-2019 lowered severity standard, extended limitations, prohibited NDAs, required training. NY HRL substantially expanded.

Highest employer liability potential. Tangible employment action triggers strict liability. Non-tangible action subject to Faragher/Ellerth defense. Most consequential harassment cases involve supervisors.

Negligence-based liability. Employee must establish employer knew or should have known. Internal complaints typically establish notice. Employer must take prompt corrective action.

Some courts apply lower threshold for liability. Employer often has substantial control over client interaction. Customer service contexts particularly significant.

Title VII covers per Oncale v. Sundowner Offshore Services. Hostility motivated by gender even without sexual desire qualifies.

Sexual orientation and gender identity harassment is sex discrimination per Bostock. Federal protection. State laws often provide broader protection.

Treated as sex harassment under PDA and Title VII. Sometimes overlaps with disability claims.

Single incident sufficient when severe enough. May involve criminal proceedings in addition to civil. Workers compensation may apply for some physical components. State laws often provide additional protection.

Often the strongest claim. Termination or adverse action after harassment complaint typically supports retaliation regardless of underlying harassment claim merit. See Wrongful Termination page for retaliation framework.

When harassment is so intolerable that employee resigns, treated as termination. Pennsylvania State Police v. Suders standard. High threshold but available.