Some instances of employment discrimination are dramatic, overt gestures that other people in your workplace noticed when they happened. If you file an employment discrimination lawsuit, and a coworker who witnessed the discriminatory incident takes the witness stand and describes what she witnessed, even the most understated description would be enough to convince the judge or jury that your employer’s actions are discriminatory. Other employment discrimination cases involve years of subtle manipulation, where, when you complain about the discrimination, your employer denies it, and there is no evidence except your own statements, because every discriminatory thing your employer said or did had no witnesses except the two of you, or if there were other witnesses, there was at least one other plausible interpretation of your employer’s actions besides the discriminatory one.
The same applies to sexual harassment. Some people who experience sexual harassment in the workplace can win their cases simply by showing the court screenshots of sexually suggestive text messages, but others complain of offensive comments that took place whenever the claimant and the aggressor were alone together; no matter how numerous they were, there were no witnesses, and there is no written record. The word “sexual” is sure to attract clicks in almost any context, but from a legal perspective, sexual harassment is like any other kind of workplace harassment, which means that it is illegal. The Boulder sexual harassment lawyers at HKM Employment Attorneys LLP can help you present persuasive evidence that your coworkers’ behavior toward you counts as sexual harassment.
When is Immature and Unprofessional Behavior in the Workplace Illegal?
As the National Labor Relations Act reminds us, not all unfair behavior by employers counts as discrimination. The world would be a utopia if favoritism and personal rivalries never played a role in the workplace, but the chances that you will count at least one of your coworkers as an enemy, or at least as a thorn in your side, are at least as great as the chances that you will count at least one of them as a friend. It is perfectly legal for employers to prefer to hire people based on personal preferences, such as which college they graduated from or which sports teams they support. It is only illegal to take adverse actions, including but not limited to refusal to hire, against people based on protected characteristics, which are personal or familial characteristics such as age, race, religion, sex, disability, or national origin.
Once you are employed, not only is it illegal for employers to take adverse actions against you because of protected characteristics, because this would be discrimination, but it is also illegal for them to discriminate against you for engaging in a protected activity, because this would be retaliation. Protected activities are the exercise of legal rights, such as filing workers’ compensation claims, reporting misconduct, taking FAMLI leave, and participating in labor unions or union-like activities, known as concerted activities. Adverse actions include penalties that would be appropriate responses to employee misconduct, such as negative performance reviews or termination of employment. Harassment, including sexual harassment, also counts as an adverse action, and it is always illegal; employment laws sometimes use the terms harassment and hostile work environment interchangeably.
What Does Sexual Harassment Have to Do With Employment Discrimination Laws?
Since harassment, also known as a hostile work environment, is an adverse action and sex, marital status, and sexual orientation are protected characteristics, sexual harassment counts as employment discrimination. The legal definition of sexual harassment is much broader than the most widespread media images.
The most publicized cases of the #MeToo movement only show one aspect of sexual harassment that is prohibited under employment discrimination laws. Any time coworkers treat you disrespectfully to intimidate you or distract you, they do this consistently or egregiously enough to interfere with your work, and the harassment relates to romantic relationships or your sex, it is sexual harassment. It does not even matter if the aggressor is someone that a dating site algorithm would consider a possible match for you, such as if, for example, you clicked, “I am a woman seeking a man.” The following scenarios all count as sexual harassment:
- A coworker tells other coworkers, even in jest, that the two of you are dating or repeatedly says that she wants to date you
- A coworker criticizes you for being single and frequently tells you that you would easily find a partner if you spent more effort on your physical appearance
- A coworker asks you intrusive questions about your relationship with your current partner or your previous romantic relationships
- A supervisor goes out of his way to create situations where the two of you are alone together
- A coworker asks intrusive questions about your pregnancy or your fertility treatments and offers copious unsolicited advice
How to File a Sexual Harassment Complaint
Because sexual harassment is employment discrimination, you must follow the process for employment discrimination claims if you want to sue your employer for sexual harassment. Many sexual harassment cases also involve retaliation, where the employer took an adverse action against the employee after he or she complained about the harassment. They might also involve more than one protected characteristic. For example, the employee’s race, national origin, or disability might also be a focus of harassment, in addition to his or her sex.
The first step in filing an employment discrimination claim, including claims related to sexual harassment, is to contact the Equal Employment Opportunity Commission (EEOC). You can only file a discrimination lawsuit in court after the EEOC conducts an investigation, corroborates your claims, and gives you formal authorization to sue. You have the best chance of prevailing in your case if you start working with a lawyer before you contact the EEOC.
Contact HKM Employment Attorneys, LLP, About Sexual Harassment
The Boulder employment lawyers at HKM Employment Attorneys, LLP, can counsel you about filing a sexual harassment complaint against your employer. Contact the employment lawyers at HKM Employment Attorneys LLP in Boulder, Colorado, to set up a consultation.
