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Michael Phelan
Michael Phelan
Attorney • (866) 249-3164

Sexual Harassment in the Workplace

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Even in 2008, sexual assault continues to haunt the workplace. Since 1964, when sex and gender based harassment were outlawed with the passage of the Civil Rights Act of 1964, some male employers and supervisors have continued to use the workplace as a trolling ground for sexual gratification. More often than not, this is much, much more than about sex – it’s about raw power. When an employer or supervisor uses the economic power of the workplace over a woman to force sexual contact, the female employee is placed in a hopeless situation. She must choose between putting her hard earned wages, a job, medical benefits and, often, concern for her family’s ability to survive and blowing the whistle on this illegal conduct. Many times, there is no realistic choice. While completely involuntary and repulsive, it is the fear of losing the ability to care for her family that forces many women into this horrible nightmare she must face just by clocking in or reporting to work every day.

These State and federal laws protect against any unwanted gender based or sexual conduct that effects terms, conditions or privileges of employment. Title VII of the 1964 Civil Rights Act applies this prohibition to employers of 15 employees or more. Most states have complementary or parallel protection against sexual contact in the workplace. (While less common, men can also be subjected to this illegal conduct). Employees are generally also
protected against sexual conduct by customers of an employer. The statute provides very strong retaliation protection to those who oppose illegal conduct and to those who participate in any proceedings in claiming
protection of the law or as a witness to such conduct. The Equal Employment Opportunity Commission website contains extensive information on sexual harassment, retaliation and other forms of prohibited workplace
discrimination (www.eeoc.gov). State and federal judges take the retaliation protection very seriously and will not tolerate intimidation, threats or any retaliation to witnesses or to persons asserting their legal rights to challenge this conduct. In the case of Burlington Northern v. White, the United States Supreme Court recently expanded the retaliation protection in Title VII cases to prohibit any employer action that would dissuade a reasonable employee from asserting legal rights or assisting in a claim. Some federal Title VII claims have damage caps, or maximum limits, depending on the number of employees, but allow for recovery of emotional distress, humiliation, embarrassment, inconvenience, back pay and benefits values, reinstatement (or front pay in lieu of reinstatement at the court’s discretion), pre-judgment interest and an additional award of any prevailing employee’s attorneys fees and costs of court, to be paid by the offending employer. The damage cap for employers of 500 or more employees is $300,000 compensatory and punitive damages (in addition to awards for front and back pay, pre- and post- judgment interest and attorneys fees and costs of court). Lesser cap amounts apply to smaller employers, but even employers who employ as few as 15 employees have legal damage responsibility to not bring sex into the workplace. The law allows groups, or a “class”, to challenge conduct that equally applies to many women.

Where a worker’s work environment is affected or work benefits or salary are conditioned on the economic power of a supervisor to demand sex for job benefits, the employer is responsible. Where the employer creates or allows
a “sexually hostile environment”, the employer is responsible. If you have a claim that you wish to pursue under this statute you must act promptly. You should consult an attorney knowledgeable in these areas. It is important that you report the conduct internally. An employer must take prompt and effective action to end the illegal conduct. The employer may have defenses if they encourage complaints, have a complaint process and you
do not use the process. There should never be a requirement that you report the conduct to the offending supervisor. If the employer requires this or the process is ineffective or futile, it will likely lose any defense it may
have for a complaint process.

Depending on your state, the time to file a claim with EEOC may be as little as 180 days from the time of the sexual contact or illegal conduct. State and federal employees may have even shorter deadlines. In Virginia, because
Virginia has a state deferral agency process, EEOC claims may be brought against private employers within 300 days, but, whether you have a less than 180, 180 or 300 day deadline, you should not wait. Your attorney can take
steps to preserve critical evidence now that the employer maintains (including damning emails and IM or text messages) – you should act immediately so that evidence is not destroyed or ‘lost’.

Public employees have additional protections provided by their public employer and the U.S. Constitution Equal Protection Clause of the 14th Amendment which prohibits inappropriate sexual conduct in public employment.
However, these are subject to different timelines. Please act immediately or you may lose your right to challenge the conduct under these laws.

State common laws, including claims for assault, battery, sexual battery and intentional infliction of emotional distress are generally available to employees to assert directly against the offending supervisor or co-worker.
These claims generally allow longer time periods for filing suit than state or federal statutory claims, like Title VII, but time is critical in order to preserve witness testimony, evidence and the ability to prove the claims. These claims may have greater damage caps than allowed by statutory protections, or even no damage caps. In Virginia, where our law firm is located, there is no compensatory damage cap for these types of claims. That includes the forms of emotional distress, humiliation and embarrassment that are subject to the federal Title VII $300,000 damage cap. Virginia does have a damage cap on punitive damages, $350,000. Punitive damages are in addition to compensatory damages and are designed to punish the offender – to send a message to the community that this behavior will not be tolerated in the Virginia business community. Most states have common law protections that are similar to this, although specific protections and damage relief will vary from state to state.

In a case involving sexual assault in the workplace, our law firm will generally preserve both the state and federal claims so that the employee has the maximum amount of choice and leverage in terms of the best way to prevail in the case. With the advent of so much information being retained by employers in electronic data formats, we act immediately to preserve that evidence. Many of these cases are resolved by settlement, but we prepare every case for trial. Settlement occurs for many reasons, but a primary reason is because of the risk that a jury will award significant trial damage recoveries against the law-breaking employer, supervisor and/or co-worker. As the old adage goes: a case prepared for trial will settle; a case prepared to settle, will try.

In Virginia, an employer may be held responsible for the wrongful, tortious acts of its employees, even criminal acts, where the employee uses the employment to facilitate the sexual contact. As a general rule, an employee
who is engaged in the performance of the employer’s work while the sexual conduct occurs (no matter how far afield he or she may be in how that is performed), the employer can be held responsible for the sexual assault or
contact. A lead Virginia Supreme Court case held a Virginia medical group subject to liability for a therapist who had sex with patients on the premise that it was part of the therapy. Another Virginia case held an employer subject to liability for a church sexton who sexually abused children at a church. We have successfully represented employees in cases involving workplace rape, sexual assault, touching, supervisors exposing
themselves, and repeated, abusive, sexual propositions and demands for sex. In most of these cases, the employer was subject to vicarious, or secondary, liability for its employee’s actions. Virginia has very favorable vicarious liability, or respondeat superior, law that places responsibility on the employer for placing the employee in the position of harming another employee, customer or third party.

Virginia also recognizes the tort of negligent hire and retention directly against the employer for hiring or retaining an employee who poses a risk to the public or to other employees that was known or should have been known.
Employers who hire or retain employees with known propensities for improper or illegal sexual behavior, such as sex offenders and persons who have been disciplined or warned of improper sexual conduct in the workplace, can be held responsible for sexual assault or other improper sexual conduct in Virginia and, in some way, in all U.S. jurisdictions. Where the employer is aware, or should be aware of the conduct, the employer cannot allow it to
continue without suffering the consequences it creates or allows.

Sexual assault in the “workplace” does not always take place in the traditional workplace. The “workplace” may be a remote location where work is performed. This could include sexual assault by an employee of a company
against a customer, a customer’s daughter or son, or anywhere the employment takes the offending employee. In these cases, since the victim is not an employee of the company, the statutory employment discrimination laws, such as Title VII, generally will not offer protection. However, the state common laws mentioned above (assault, battery, sexual battery, intentional infliction of emotional distress, negligent hire or retention of employees),
can be used by customers of employers with employees who sexually assault them or their family members.

Sexual assault is a horrible and demeaning wrong. Because of the circumstances, victims are often reluctant to come forward. Unscrupulous supervisors who use economic pressure over employees to force sexual contact
or who simply abandon all pretense of any “demand” to simply grab, touch, kiss or rape employees (and, by employing, acquiescence or negligence, their employers) rarely do this in isolation or a single time. Generally, the
pattern of abuse affects many women before one or several stand up to stop it for them and for future employees. If you have been subjected to a sexual assault, inappropriate sexual conduct or other sexual conduct, please
use the legal tools available to stop it. Congress and your states have enacted laws to stop the behavior, but it cannot be stamped out without you. I hope this overview of the various forms of legal protection has been
helpful. Harris Butler