Sexual Harassment Lawyer
Are you being subjected to a “hostile work environment”? Even if the answer is “yes,” the problem might not be a legal one. To come under legal protection, workplace harassment must be based on a “protected class” such as sex.
We can help you figure out whether your situation is legally “sexual” harassment or, even if it’s not, how to solve your problem. Give us a call.
What Is Sexual Harassment under the Law?
To make a legal claim, workplace harassment must be directed at an employee’s protected class, in this instance, sex or gender. Think of it as a sub-category of sex discrimination. If a manager treats everyone in a degrading, disrespectful manner, the manager may be a garden variety, non-discriminatory jerk. But the manager has not violated the law, and thus, there is no legal claim for “sexual harassment.”
How Does One Prove Sexual Harassment?
After it is determined that the harasser, for example a male, focuses his offensive advances based on sex, a sexual harassment lawyer should analyze the facts to decide whether they satisfy other required elements of a legal claim. The sexual advances must be both objectively and subjectively offensive. That means that not only the recipient finds the sexual advances offensive, but that a reasonable person in the same situation would view them as offensive.
Next, the attorney for sexual harassment will explore whether the offensive sexual advances were “unwelcomed” by the recipient. That means that the employee being harassed must prove that she did not invite the sexual advances.
You also must present facts showing that the sexual advances were either “severe or pervasive.” In this context, “severe” means a horribly unwanted sexual attack, such as rape. Note the use of “or.” If there is no horrible one-time event, you can prove sexual harassment by showing that the harasser’s sexual advances are “pervasive,” meaning that the harasser is relentless. He makes the sexual advances repeatedly, so frequently that the problem permeates the workplace to the extent that he creates a “hostile work environment.”
When Is Sexual Harassment Not “Pervasive”?
Many courts have ruled against the plaintiff’s claim of sexual harassment based on the absence of pervasiveness. For example, one manager often swatted his female assistant on her derrière, but the court ruled against her.
In another case, a male co-worker continually made lewd sexual remarks to his female colleague, indicated that he wanted to have sex with her, and then held her body up against the front of his body when she tried to pass through a doorway. The Fifth Circuit Court of Appeals threw the case out, stating that ninety seconds does not constitute sexual harassment.
Another example involved a female lawyer who was required to travel with her male supervisor. On three different occasions, he enticed her into his hotel room on the premise of needing to work. Then he attempted to force her into sexual intercourse but each time she refused and left his room. Again, the Fifth Circuit appellate court ruled that three events did not rise to the level of sexual harassment.
What’s the Solution?
At Gardner Employment Law, we have litigated sexual harassment cases. In one trial, our plaintiff was awarded the largest punitive damage award in the state.
We have successfully handled even more situations that were troublesome but, as with the female lawyer above, did not rise to the level of a legal claim. If you are facing either type of harassment, feel free to give us a call.