Sexual Harassment
A sexual harassment case will indefinitely present a number of legal complexities that if not handled in a precise manner, and within a precise time period, will often be irreparably harmed.
It is important that anyone who believes they are a victim of sexual harassment speak to an attorney that is specifically experienced in this area of the law before taking any type of legal action. A consultation should take place as soon as possible--as time is always an essential factor in a sexual harassment case; just as it is with most discrimination cases.
Sexual harassment is prohibited by the Illinois Human Rights Act and is punishable as an illegal form of gender discrimination under its provisions. Further, Title VII of the Civil Rights Act of 1964 is a federal law that, practically speaking, is a federal version of the Illinois statue mentioned above. However, their are several nuances between the two laws, which in actual practice, turn out to be substantial differences. Such differences are beyond the scope of this discussion.
Sexual harassment can take many forms including, but limited to, unwelcome sexual or sexist comments about a co-worker's appearance, a mandatory dress code that provokes others to make sexually explicit comments, unwanted sexual contact, sexual suggestions, pressure to have sexual contact, sexual jokes or explicit sexual comments that embarrass a coworker, and/or sexual or pornographic pictures displayed or passed around. However, when the type of inappropriate behavior described above occurs, it must be either severe or pervasive. Also, it must be unwelcome and be both subjectively and objectively unpleasant enough to affect the terms and conditions of the victim's work environment.
When the alleged harasser is a person of authority such as a boss or supervisor, inappropriate sexual behavior is far more likely to constitute discrimination based on sex than when the same behavior is from a co-worker. Under Title VII of the Civil Rights Act of 1964, if the harasser is not a person with authority over a Plaintiff in a sexual harassment case, the Plaintiff will be required to come forward with evidence that the employer knew of the behavior on the part of the co-worker, and was negligent in that he failed to prevent it or otherwise correct the behavior. However, under the State of Illinois' sexual harassment statute, the Illinois Human Rights Act, proving harassment is not quite as difficult as under the federal law. Particularly with some of the recent Illinois Supreme Court decisions.
For example, On April 16, of 2009, In Sangamon County Sheriff’s Department v The Illinois Human Rights Commission, Nos. 105517, 105518, 2009 WL 1011986, the Illinois Supreme Court held that an employer is strictly liable for sexual harassment committed by a supervisor, regardless of whether he or she is the Plaintiff’s supervisor or in the Plaintiff’s chain of command. Actually, the Illinois Supreme Court has made a number of landmark decisions concerning the sexual harassment under the Illinois Human Rights Act in the recent past, and most are in favor of the victim. However, such decisions are beyond the scope of the instant discussion.
Sexual harassment is illegal if participation in any of the above activities are required to obtain or retain one's employment, to be promoted, qualify for benefits, or if the activity creates an environment that is hostile to the point that it would unreasonable to expect the victim to adequately perform his or her work duties. The behavior must be unwelcome, undesirable, pervasive, and offensive to be considered sexual harassment. The law uses the "reasonable person" standard to determine what is pervasively offensive enough to impose liability on an employer, meaning simply that if a reasonable person would find an action sever enough, or pervasive and offensive enough, then a hostile work environment will have existed. Thus, there is no bright line standard test.
Determining what kind of behavior constitutes sexual harassment usually depends on the circumstances. However, some general descriptions of sexual harassment can be made. A single, or occasional, sexual joke or sexual comment is not sexual harassment unless the comment unequivocally offers workplace advancement in return for sexual favors. This is known as quid pro quo sexual harassment.
Generally there are two types of sexual harassment recognized within Title VII of the Civil Rights Act of 1964 and the Illinois Human Rights Act:
1. "Quid Pro Quo" sexual harassment occurs when submitting to or rejecting the harassment is used as the basis for a decision regarding one's employment, or is otherwise linked to job benefits. Further, the harassment must be because of your gender, which is clearly a given.
2. "Hostile Work Environment" is a much more common form of harassment which occurs as a result of behavior that is sufficiently severe or pervasive enough to effectively change the terms of one's employment, meaning it is so severe that one could not reasonably be expected to perform one's job in such an environment. Insulting remarks made far and between will not suffice to establish a hostile work environment.
The identity of the harasser is also very important when determining whether sexual harassment has occurred. Generally the actions of co-workers who have no authority over you will be taken much more lightly than the same behavior when committed by a manager or someone in a position of authority.
Further, in order for liability to attach to one's employer, one must let the harasser know that his or her behavior is unwelcome, and one must report the behavior to her employer and let the employer know the victim's feelings, as well as following any other procedures in place to be followed in such a situation. A case under the hostile work environment theory will usually be without merit unless it can be shown that the harassment was reported to one's employer and the employer neglected to remedy the problem. Otherwise, the employer can defend on the grounds that he was unaware of the harassment, or that the victim made no reasonable attempt at showing the behavior was unwelcome. It is also advisable for the victim to bring a trusted friend to witness reporting the incident to the employer, and in addition to send him an email memorializing the conversation on his or her own computer in order to preserve evidence of the existence of a complaint. However, under the Illinois Human Rights Act, an employer will be strictly liable any time a manager or other person in a position of authority engages in conduct that can deemed sexual harassment. This is pursuant to recent holdings by the Illinois Supreme Court.
Lastly, a case for retaliation may be made by any person who is terminated, demoted, denied a promotion, or suffers in any way in the terms of his or her employment as a result of reporting or complaining about an incident of sexual harassment. Even if the person complaining was not the victim of the harassment, a case for retaliation will have merit if it can be shown that the person received such treatment in retaliation for his or her report or complaint. Often the mere proximity in time between the complaint and the employee's discharge can be sufficient to state a primae facie case for unlawful retaliation. However, as mentioned before, it is crucial that evidence be preserved of at least one, if not several complaints were made to one's employer, and/or supervisor.
If you feel you are being harassed, you do not have to put up with it! Call an attorney with experience in handling sexual harassment cases. Call the Law Office of Ryan Scott Nalley for a free telephone consultation today.
[773] 621-6809