Sexual Harassment By a Supervisor

By Douglas Lipsky

No employee should have to endure sexual harassment. They should be able to come to work and just work. Sexual harassment poisons that environment – even more so when the employee’s harasser is his or her supervisor. This power imbalance understandably creates unique issues: employees are scared to complain or go along with the harassment, fearing retaliation. It also alters the legal analysis.

The crux of any sexual harassment claim is that the alleged conduct is “unwelcome.” The correct inquiry in examining a harassment claim is accordingly whether the plaintiff indicated that the conduct was welcomed, “not whether [his] actual participation in [the conduct] was voluntary.” This issue is particularly important when the harasser is a supervisor. The Second Circuit recognizing that inherent power balance, explained a “supervisor’s conduct is equally unlawful under Title VII whether the employee submits or not . . . We do not read Title VII to punish the victims of sexual harassment who surrender to unwelcome sexual encounters. Such a rule would only encourage harassers to increase their persistence.”

Within this framework, a Southern District court held the following conduct, which spanned three years, constitutes actionable sexual harassment: a direct supervisor repeatedly invited the plaintiff to his house, made comments about her body, expressed romantic feelings towards her and expressed a desire to “hug her.”

Another district court held the following conduct constitutes sexual harassment: the manager initiated the sexual relationship with the plaintiff, which escalated from occasional touching to oral and anal sex. The company defended these claims, arguing the plaintiff never complained and the relationship was consensual. The court swatted away those arguments by recognizing the power imbalance when a manager is harassing a subordinate and explaining, though the plaintiff never complained, “it was his fear of losing his job that prevented him from doing so.” The court went on to stay, while the sex was “not necessarily forced, neither was it invited.”

Sexual harassment claims, in general, require a skilled and knowledgeable attorney – even more so when a supervisor is involved. The employment lawyers at Lipsky Lowe have significant experience representing clients on this very issue. The sexual harassment lawyers here know how to navigate these claims and to most effectively advocate for your clients.

If you are experiencing sexual harassment, call one of the sexual harassment lawyers at Lipsky Lowe.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.