On-the-Job Discrimination: Sexual Harassment
Sexual harassment is a form of gender-based discrimination. The Civil Rights Act of 1964, in combination with the Civil Rights Act of 1991, serves to protect the rights of various groups of people from discrimination in the workplace based on membership in a protected category. Sex is a protected category. The Civil Rights Act of 1991 clarified the scope of protection and remedies available to victims of discrimination. Several federal agencies work closely with state governments and employers to prevent discrimination in the workplace. These include the Department of Labor and the Equal Employment Opportunity Commission.
If you feel you are the victim of sexual harassment, report the conduct to the appropriate person. Your employer should have a well-documented reporting process. If not, contact an attorney and the EEOC immediately.
- Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
- Common examples of sexual harassment include:
- Unwelcome sexual advances.
- Requests for sexual favors.
- Verbal or physical conduct of a sexual nature.
- Any conduct that implicitly affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment can be considered sexual harassment.
- In Tennessee, the courts also describe sexual harassment as "any unequal treatment of an employee that would not occur but for the employee's gender." The conduct does not have to be "sexual" in nature but must still be unwelcome and severe enough to make a reasonable person uncomfortable.
- Protected Categories are groups of persons with characteristics in common, such as race, sex or nationality that Congress has decided must be protected from discriminatory practices. Congress generally bases this determination on a history of discrimination.
- Anyone can be harassed:
- Men or women.
- Anyone affected by the offensive conduct, not just the person who is being harassed.
- Sexual harassment can come from a variety of people, including:
- A supervisor.
- An agent of the employer.
- A supervisor in another area.
- A co-worker.
- A non-employee.
Filing Requirements and Limitations:
- For harassment claims, use any employer complaint mechanism or grievance system available so that the offender will be directly informed of the inappropriate conduct and so that the company will have the opportunity to take prompt and appropriate remedial action. You must take this step in order to protect your claim. Taking this step will also ensure that a written record of the conduct is on file.
- The federal law that governs sex-based discrimination, including sexual harassment, only applies to companies and businesses with 15 or more employees.
- Your claim must first be pre-filed with the EEOC within 180 days of the potentially unlawful action or within 300 days of the unlawful action if your state is a referral jurisdiction state. Tennessee is a referral jurisdiction state. The deadline will not be extended because of internal investigation of the incident within the company.
- A lawsuit must be filed within 90 days of the receipt of a right-to-sue letter from the EEOC.
- If you believe that you have been discriminated against on the basis your gender, it is best to contact an attorney immediately, who will advise you of your rights and duties under the law.
- The Civil Rights Acts also apply to foreign nationals working in the United States, regardless of citizenship. Pursuit of a claim, however, may be more difficult if the foreign national lacks a work permit.
Remedies and Damages:
- Back Pay
- This is the most common form of relief.
- It includes the value of wages, salary, and fringe benefits the claimant would have received during the period of discrimination from the date of termination/failure to promote to the date of trial.
- You have a duty to mitigate these damages by taking reasonable efforts to find comparable employment after you have been terminated.
- Compensatory Damages
- Awarded for emotional distress, pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life.
- Individual claim caps are placed on this type of damages based on the size of the employer.
- Attorney's Fees
- The court may choose to award attorney's fees to the prevailing, or winning, party.
- Punitive Damages
- These types of damages are limited to cases in which the employer's discrimination is intentional and was done with malice or reckless indifference to the individual's rights. Punitive damages are meant to punish the defendant for its behavior. Therefore, not every case will merit punitive damages.
- Claim caps also apply to these awards.
- Front Pay
- Designed to compensate the victim for anticipated future losses due to the discrimination when the employer refuses to reinstate the employee or the court determines that reinstatement is not feasible.
- Injunctive Relief
- Common examples of injunctive relief include reinstating a terminated employee or ordering the employer to prevent future discrimination.