Q: What is sexual harassment? What constitutes sexual harassment?

Sexual harassment is effectively a form of gender discrimination in the workplace. Sexual harassment comes in many forms. It includes unwelcome sexual advances, jokes, comments, requests for sexual favors, and other verbal or physical conduct of a sexual nature. Typically the most egregious forms of sexual harassment involve physical touching: touching, petting, or purposely brushing up against the person. The uninvited conduct does not, however, have involved physical touching; it can be unwanted communications, whether those be in person, phone calls, emails, social media postings or text messages.

Q: Who can be held liable for sexual harassment?

Co-workers, supervisors, clients, and third-party vendors can all be held liable for harassing or offensive conduct.

Q: What does “unwelcome” conduct mean?

Determining whether the conduct is unwelcome looks at whether the conduct was consensual. This will include examining whether the harassed party made clear the conduct was not welcome. However, to be clear, the harassed party does not have to say “no” for the harassment to be unwelcome.

When examining whether the conduct is unwelcome, courts recognize victims are sometimes coerced into going along with the harassment, especially by a supervisor, because they are afraid of being punished at work if they complain.

Q: What are the two types of sexual harassment? What are the differences between the two types of sexual harassment?

Two types of sexual harassment exist: quid pro quo and a hostile work environment.

Quid pro quo” is Latin for “this for that.” This type of harassment occurs when, usually, a supervisor requires an employee to submit to unwelcome sexual harassment in exchange for something. This something includes, by way of example, a promotion, a pay raise, or not getting fired.

“Hostile work environment” harassment occurs when unwelcome verbal or physical conduct unreasonably interferes with an individual’s ability work, or when it creates an offensive, intimidating, or hostile work environment. Under the New York City Human rights Law, this harassment occurs when someone is treated less well because of their gender.

Q: When is the right time to file a lawsuit over sexual harassment?

Sexual harassment is actionable typically when:

(1) Submission to the sexual harassment is made a term or condition of employment

(2) Submission to or rejection of the sexual harassment is used as the basis for employment decisions

(3) The sexual harassment has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment

(4) The sexual harassment has made the work environment so intolerable you feel you have no choice but to quit

Q: Any special requirements before filing a sexual harassment lawsuit?

It depends on under what statutes you are suing. For claims under the New York City Human Rights Law or New York State Human Rights Law, you can immediately file a lawsuit in state or federal court. If you are suing under Title VII, you must first file a Charge with U.S. Equal Employment Opportunity Commission. This is called “exhausting your administrative remedies.”

Q: Can I be fired or demoted if I report sexual harassment?

While no law can prevent a company from doing so, it is illegal to fire, demote, harass, or otherwise “retaliate” against applicants and employees who report sexual harassment. The reporting includes complaining to Human Resources, complaining to a supervisor, filing a lawsuit, filing a charge with the EEOC, or participating in an employment discrimination proceeding. If a company does this, they are liable for your lost wages and possibly punitive damages.

Q: What should I do if I am being sexually harassed?

Record all the times you had to field unwelcome sexual advances or tolerate inappropriate behavior. A detailed journal, documentary evidence, and credible witness testimony are critical to proving a sexual harassment claim. Emailing yourself is a great way to keep a record of what is happening.

Report your concerns to supervisors and “up the chain of command” to management.

For additional legal assistance, speak to an experienced sexual harassment attorney who can pursue your claim, whether that be in court, with the EEOC or directly with the company.

Q: Is there a time limit to file a sexual harassment claim?

Yes. Victims generally need to file a charge with the EEOC within 180 days from the day the harassment took place if you are bringing a claim under Title VII. For employees in New York, that 180 deadline is extended to 300 days. If you are bringing a claim under the New York State Human Rights Law or New York City Human Rights Law, you have 3 years.

Q: Do I have to file a charge with the EEOC?

It depends on under what statute you are suing. If you are asserting a claim under Title VII, you need to file an EEOC Charge before going to court. If you are asserting claims under the New York State Human Rights Law or New York City Human Rights Law, you can go directly to court.

Q: What happens after I file a charge with the EEOC?

Upon receiving the complaint, the EEOC will likely recommend mediation, where the parties are encouraged to find a mutually acceptable solution. This can take less than 3 months. If mediation does not work, the EEOC will forward the charge to an investigator, who will investigate the complaint. If the investigation reveals a violation of law, the EEOC will issue a “right-to-sue.” You need this right to sue letter before you can file a lawsuit in court.

Q: What the damages I can recover for sexual harassment?

Under Title VII and the NYCHRL, an employee can recover damages for lost wages, emotional distress damages, punitive damages and can recover their attorneys’ fees. Under the NYSHRL, an employee can recover the same damages except for punitive damages and attorneys’ fees.

Q: Why should I hire an attorney to represent me in a sexual harassment claim?

An experienced NYC sexual harassment attorney can help you present the strongest possible case. Lipsky Lowe’s lawyers know the law, and have extensive experience litigating sexual harassment claims – whether that be in court or with the EEOC.