What is sexual harassment? What can you do about it?

Sexual harassment

Title VII is an employment statute that prohibits sexual harassment and hostile work environment

The term sexual harassment became part of the public consciousness and discourse over twenty years ago when Anita Hill testified to sexual harassment from her former boss Clarence Thomas during a Senate Judiciary Committee hearing on the nomination of Thomas to the Supreme Court, in the fall of 1991.

Sexual harassment liability is found under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended.  Title VII prohibits discrimination in employment in hiring, firing, compensation, terms and conditions or privileges of employment on the basis of race, color, religion, sex, or national origin. Title VII applies to employers with 15 or more employees on the payroll. While the employment statute only mentions sex and not sexual harassment, the courts have recognized discrimination on the basis of sex to includes sexual harassment.  Sexual harassment can be either quid pro quo harassment or “hostile work environment.”  Federal and state courts have also recognized reverse discrimination where the victim of the sexual harassment was male and the harasser was female.  Sexual harassment is not limited to heterosexual advances.  The United States Supreme Court has held that Title VII’s prohibition against sexual harassment applies when the harasser and the harassed employee are of the same sex.

QUID PRO QUO SEXUAL HARASSMENT

Quid pro quo means “this for that.” Quid pro quo sexual harassment occurs when submission to or rejection of unwelcome sexual conduct by a employee is used as the basis for tangible employment decisions affecting the employee victim.  It is interesting to note that the terms “Quid pro quo ” and “hostile work environment” do not appear in the statutory text but first  appeared first in the academic literature and eventually in case law and gained legal recognition.

A classic example is when a supervisor requires sex in exchange for continued employment.

HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
To recover for sexual harassment under a hostile environment claim, an employee must demonstrate that (1) he or she was subjected to unwelcome harassment, (2) the harassment was based on sex, (3) the harassment was sufficiently severe or pervasive as to alter the terms or conditions of employment and create an abusive working environment, and (4) that the employer knew or should have known of the harassment.

Employers may be held vicariously liable for harassment by supervisory personnel.

REMEDIES AVAILABLE FOR SEXUAL HARASSMENT

The United States Supreme Court has identified a two-fold purpose behind Title VII’s enactment: (1) eliminating employment discrimination, and (2) allowing the aggrieved party to be made whole for those injuries suffered on account of unlawful employment discrimination. Albermarle Paper Co. v. Moody Paper Co. V. Moody, 422 U.S. 405,417-18,95 S. Ct. 2362, 45 L.Ed. 2d 280 (1975);  There are several remedies available for sexual harassment under Federal employment law and Texas state law.

1) Injunctive relief requiring the employee to be hired, rehired, promoted, restoring union membership, and requiring on-the-job training.

2) Back wages  and front pay (future pay or loss of earning capacity).

3)  Compensatory (mental anguish and medical bills) and punitive damages are available, but these damages are capped at relatively modest amounts that vary with the number of employees. The cap for the sum of compensatory and punitive damages under Title VII and Texas discrimination laws ranges from $50,000 for employers with fewer than 101 employees to $300,000 for employers with more than 500 employees.

4) Attorney’s fees.

 

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