For over 30 years, attorneys at Katz Banks Kumin have been on the forefront of sexual harassment litigation, establishing the right to legal protection and full economic redress for workers who have been subjected to sexual harassment and assault.
We are nationally recognized as experts in sexual harassment law. We have won important victories for our clients and have obtained significant settlements and jury verdicts for clients who have had their rights violated. We regularly publish and lecture on sexual harassment legal issues, and provide legal commentary and analysis on sexual harassment issues for major television and radio networks, cable news shows and all major print media, including the New York Times, the Washington Post, National Public Radio, and the like.
Client counseling, timely intervention and strong advocacy can be key in stopping workplace sexual harassment and assault. Our sexual harassment lawyers have assisted hundreds of employees in navigating this stressful terrain.
What is sexual harassment in the workplace?
Sexual harassment is a kind of sex discrimination in the workplace that violates both federal and state anti-discrimination laws. A wide variety of behavior may constitute sexual harassment, and both men and women can be targets. The perpetrator may be of the same or opposite sex, and may be a supervisor, a co-worker, or even a non-employee. To be considered sexual harassment under the law, the behavior must include a couple elements.
First, it must involve either unwanted sexual advances or some other unwelcome conduct – such as demands for sexual favors or touching – that happens because of the victim’s sex or gender.
Second, the behavior must either cause a “tangible personnel action” (such as hiring, firing, non-promotion, demotion, undesirable reassignment, or change in pay or benefits in response to the employee’s refusal to submit to the unwelcome conduct), or, if there is no tangible personnel action, the behavior must be so severe or pervasive that it in effect changed the victim’s working conditions, making it a sexually hostile work environment.
Only behavior that meets the two elements above can constitute a civil legal claim for sexual harassment.
Does sexual harassment include sexual assault?
Sexual assault is a form of sexual harassment.
While most sexual harassment cases are based on a series of incidents, there are instances where a single incident is so severe that it sufficiently alters the terms and conditions of one’s employment. This applies almost exclusively to cases involving sexual assault or inappropriate touching.
If the assaulter is a supervisor, the employer would be liable unless it can prove it had an effective policy against harassment and the employee failed to use its complaint procedures. If the harasser is a coworker or non-employee over whom the employer has control, such as a client, the employer is only liable for sexual harassment – even when based on sexual assault – if the employer knew or should have known of the harassment and failed to respond appropriately.
What is the first step I should take if I believe I am being sexually harassed at work?
An employee who believes that she is being sexually harassed can start taking action in two ways:
(1) Document the harassment. Someone who is being harassed should take notes by making a record of all the unwanted behavior and adding to it as new things happen. She should also retain email, text messages, voicemails, or other evidence demonstrating the conduct.
(2) Seek advice. A person who is being harassed should contact an attorney to find out if the behavior meets the legal definition of sexual harassment and what she can do about it. It is especially important for her to seek out legal advice before following the company’s anti-harassment policy if she has concerns that reporting will lead to retaliation. For example, if other people who have reported sexual harassment have been managed out of the company or if the alleged harasser has had multiple complaints brought against him with no type of corrective action administered, legal intervention is likely going to be necessary.
How do I report sexual assault in the workplace?
You can report sexual assault in the workplace both internally and externally.
For internal reporting, your employer should have a set of policies in place for reporting sexual misconduct, including sexual assault. If you cannot find the procedures in writing, then contact your employer’s Human Resources department. If your employer does not have policies for reporting sexual misconduct, you can report the misconduct to a supervisor.
For external reporting, there are a few options.
First, sexual assault in the workplace is a form of a sexual harassment that is prohibited by federal and state anti-discrimination laws. Title VII of the Civil Rights Act of 1964 and many state and local anti-discrimination statutes like Title VII require that employees seeking to avail themselves of the law file an administrative complaint with the appropriate administrative agency that enforces the law to pursue a claim under the statute. On the federal level, that administrative agency is the U.S. Equal Employment Opportunity Commission. On the state level, the administrative exhaustion requirements and procedures will vary by state. Please be aware that there are statutes of limitations, or time frames within which you must file your administrative complaint, to preserve your claim. Second, you can report your assault to a hospital or healthcare provider for a medical examination and treatment. Third, you can also report your assault to law enforcement. Include any documentation that you have collected related to the assault, such as medical records if you sought medical care.
Finally, you should look for support wherever it is available. Several national organizations, including RAINN, exist to provide resources and assistance to survivors. You can start by calling that National Sexual Assault hotline at 1-800-656-4673.
What are my options if I report sexual harassment to HR and they don’t investigate my complaint?
Employers have an obligation to keep their workplaces free from sexual harassment. If an employee reports sexual harassment and the company does not take action to stop it, the company may be legally responsible for harassment that continues.
A person who has reported sexual harassment has options even if the employer fails to take appropriate action to stop the harassment. She can file a complaint with the Equal Employment Opportunity Commission or with state or local EEO agencies.
What if I’m being harassed or assaulted by a coworker or customer rather than a supervisor?
Employees do not have to endure sexual harassment from coworkers or customers. If a person is being harassed at work, she can report it to a supervisor. Once an employer finds out about sexual harassment at the workplace, whether the harasser is an employee or not, the employer must take steps to address it. An employer that knows that the sexual harassment is occurring and does nothing may be legally responsible.
Some states and municipalities, including D.C., have laws that make it unlawful for any person to aid and abet sexual harassment. This means that a person cannot help another person sexually harass an employee by, for example, helping the harasser isolate the employee or by putting the employee in a vulnerable position. A person who knows about sexual harassment and helps it occur may be legally responsible.
I was sexually harassed or assaulted a long time ago. Do I still have a claim?
Generally, a person has 180 or 300 days (depending on the state where the conduct happened) from the day that the particular harassing act occurred to file a charge of sexual harassment. But for ongoing harassment that creates a sexually hostile work environment, the clock starts running at the last incident of harassment. Older incidents may still be included if they are part of an ongoing pattern of sexual harassment.
Other factors may also affect the statute of limitations. Some states, like California and New York, have enacted lookback laws that extend the statute of limitations for civil sexual assault claims. The best way to find out if you can still bring a claim is to contact an attorney.
Can I speak out about sexual harassment or assault in my office if I’ve signed a non-disclosure agreement that prevents me from making negative comments about my employer?
A non-disclosure agreement cannot block someone from her right to file a complaint with the Equal Employment Opportunity Commission or state EEO offices or to report unlawful conduct to law enforcement authorities. However, a non-disclosure agreement may require the employee to avoid speaking to the media or to the public.
When I settled my sexual harassment claims with my former employer, I signed a non-disparagement and confidentiality agreement. Can I still speak up publicly about my abuse?
Most employers will require employees to enter into confidentiality and non-disparagement agreements as a condition of settling their claims and receiving compensation. In negotiating such provisions, employees can often require employers to provide positive references and/or refrain from making negative or disparaging comments about the employee. But even if the employee enters into such an agreement, she always retains the right to report her concerns to the EEOC, law enforcement, or other regulatory agencies. And she always retains the right to testify truthfully in response to a subpoena or other court order.
Can my employer retaliate against me for filing a sexual harassment or assault claim?
It is against the law for an employer to retaliate against an employee for rejecting sexual advances, opposing such misconduct, or reporting sexual harassment. If an employee reports sexual harassment and the employer takes action against her because of her complaint, the employee may have a claim for retaliation. To be considered retaliation under the law, the action must be something that would discourage a reasonable person from reporting the harassment. That includes actions such as hiring, firing, non-promotion, demotion, undesirable reassignment, retaliatory harassment or change in pay or benefits. Also, the employer must have taken the action because of the complaint.
Where can I get more information about workplace sexual harassment and assault?
The U.S. Equal Employment Opportunity Commission has very helpful information and resources about sexual harassment.
If you are experiencing or have experienced sexual harassment, contact Katz Banks Kumin to speak with one of our intake attorneys to discuss your case, without charge or further obligation.