Statistics by U.S. Equal Employment Opportunity Commission show that of more than 72,000 charges filed in 2019, 45% of these were sex-based claims. In addition, at least 25% of women revealed that they experienced sexual harassment in the workplace.
These chilling figures are proof that sexual harassment and sexual discrimination – especially in the workplace – remain prevalent in America. But due to the sensitivity of these issues, they are usually either discussed in whispers or swept under the rug.
Thankfully, the rise of the #MeToo movement and #YesAllWomen managed to bring these disturbing incidents to the fore so that they could be talked about and that the appropriate justice be served to the oppressors. Moreover, employers found to have either kept issues of sexual harassment/discrimination/assault under wraps or who have failed to investigate the said issues properly can face serious charges in court.
There are three ways by which an employer can become liable for creating a hostile environment in the workplace: when an incident of sexual harassment or sexual assault was committed by a supervisor, by a fellow employee, or by anyone else. This liability also depends on the severity of the incident.
When committed by a supervisor
Let’s say that you have been in middle management for a considerable time in a company and are eligible for a promotion. A company restructuring occurs and you are placed under the supervision of another manager. This manager makes sexual innuendos toward you even before fellow employees but you resist. When results of the performance evaluation come in, you find out that your promotion was blocked.
The example above shows the power of a supervisor over a subordinate to make a tangible employment action. This can be used in a positive or a negative way and in this case, the subordinate was subjected to economic injury as the person was denied promotion.
Even if a company has set guidelines that discourage discrimination and harassment, it becomes liable for an erring supervisor’s action. This is based on the premise that a supervisor is authorized to make tangible employment decisions that could affect an employee.
If a supervisor is proven to have subjected their subordinate to sexual harassment or sexual assault in exchange for any job-related benefit or injury, the company is automatically required to award damages to the victim of the said abuse. However, an employer can still avoid liability if they can prove the following:
- Reasonable care was exercised to prevent any harassment, and
- The employee either failed to make a complaint or did not take action to avoid such harm.
This is why it is always a good move to take action immediately the moment you feel that you are being sexually victimized in your workplace. You can start by getting the services of an attorney who specializes in sexual harassment or sexual assault to help guide you through the process of seeking justice.
When committed by a non-supervisor or a client
What happens then if it was a co-worker with no capability to make any tangible employment action who was proven to have committed sexual harassment or sexual assault? Or if it was a mere client or customer with no employment ties to the company?
For both cases, if the victim filed a complaint with the company but the latter failed to take immediate corrective action, then the company will still be held liable and will have to pay for damages.
Company safeguards vs. sexual harassment and sexual discrimination in the workplace
It’s not enough that an employer simply lays down a set of policies to protect its employees from incidences of sexual harassment/discrimination/assault in their workplace. Various initiatives should also be taken to educate everyone about these policies from upper management down to maintenance staff through periodic training or seminars.
Notices pertaining to such violations and their corresponding penalties should also be posted in areas accessible to all employees. These could be informational in nature and/or could recommend a course of action for affected individuals.
The bottom line is for the company to be clear that it will not tolerate these acts and that sanctions will be made against anyone who retaliates against a complaining employee.
Remedies of the victim against an employer
Damages that a proven victim can claim from their company could be compensatory in nature (for financial and emotional injuries) and punitive (for reckless and malicious acts of the employer).
Here are other remedies that a victim of sexual harassment/discrimination/assault may claim from the company:
- Back pay;
- Front pay (for anticipated future losses).
- Attorneys’ fees;
- Expert witness fees; and
- Court costs.