New York Lawyer's Legal Updates

Sexual Harassment: When to Complain and the Consequences of Failure to Complain

Author: Discrimination Attorney Alena Shautsova

Sexual harassment in the workplace can be devastating, whether it is a supervisor asking you to go for drinks after work on multiple occasions, or in more serious cases the forcing of unwanted sexual acts from a supervisor. If you feel threatened or uncomfortable at work due to the advances of a co-worker, supervisor, or even an employee under your supervision you should not be afraid to come forward and confront management of the situation. If your management fails to act accordingly to your complaints you may have a valid claim for sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964. No one should have to endure sexual harassment for fear of losing their job, loss of promotion or otherwise loss of benefits.

Now, sexual harassment is defined as the unwelcomed sexual advances, verbal or physical conduct of a sexual nature. These sexual advances can be broken down into two different categories:

1. Quid Pro Quo – This involves an employment decision, whether it involves keeping your job or getting a promotion at work, if your employer or supervisor forces you to decide between submission of the sexual act or loss of benefits in the workplace.

  • Sexually explicit conduct.
  • Inappropriate touching.
  • Sexual innuendos, jokes or comments that make you feel uncomfortable.
  • The displaying of pervasive and otherwise illicit or graphic sexual content in the workplace.
  • Sexual assault.

2. Hostile work environment – When your work becomes intimidating, hostile and otherwise offensive. The behavior of your supervisor or co-workers makes it difficult to work within the workplace affecting your performance or creates a hostile, offensive or intimidating environment. For hostile work environment the courts will take into consideration:

  • Whether the harasser was a supervisor or co-worker, if the behavior is exhibited by a co-worker, you complained about the behavior the management must provide an adequate remedy to the situation or face liability for the co-workers actions.
  • If others joined in the harassment and if the harassment was directed at an individual or a group.
  • The conduct must be hostile or patently offensive.
  • How often this behavior is presented and whether it was verbal or physical.

If you fit the criteria of sexual harassment in the workplace, you must report the misconduct immediately. Not only do you want to protect yourself from future abuse, but, under the law if you fail to report the sexual misconduct it is deemed that you “liked” the behavior. This is a valid defense of your perpetrator and although you may be afraid to come forward, if you do not, you will waive your protection. For example, Sally is a secretary for John, every morning when John comes into work he slaps Sally on the buttocks and says “Go get ‘em today Sally.” Sally smirks and hurries over to sit down at her desk. A year goes by and Sally decides to tell John that she absolutely loathes the idea of him slapping her on the buttocks every morning before she heads to work and that it affects her work performance early in the morning. Although Sally was scared of losing her job for the past year, and she really did hate John’s behavior, Sally will most likely be unable to prevail in a law suit against John. John’s most likely defense will be “I had been exhibiting the same behavior for a year and Sally had never told me to stop, she like this, if she didn’t she would have said something a year ago. She is just upset because …” The only way Sally can prevail in this situation is if she told John to stop, and he continued with this sexual misbehavior.

The other major consequence of not reporting the sexual harassment is that the law places a time restraint on how far back you can report sexual harassment. In most incidents you have 180 days from the date of the incident to file your claim. Taking into consideration the hiring of an attorney, you will need to give the attorney ample time to present your case within this time restraint or “statute of limitation” preferably 30 days BEFORE the 180 days expire.

Title VII will also protect an employee who has complained of sexual harassment or discrimination from retaliation. If your employer retaliates against you by cutting your hours, changing your shift, or termination after you have complained of the harassment or discrimination you will have a valid claim of retaliation against your employer which is subject to punitive damages.

Many factors are considered when filing a claim of sexual harassment or discrimination. Consult an experienced attorney for best results. Alena Shautsova is an attorney practicing in Brooklyn, Queens, Manhattan, Bronx, Westchester, Nassau and Suffolk County. Consultation fees may be waived after a pre-screening of Office personnel for sexual harassment and discrimination cases. Call today, 917-885-2261 or email us your inquiry at office@shautsova.com.

11 November 2014
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