Saturday, December 23, 2017

Proving Sexual Harassment Discrimination

By John V. Berry,

We represent employees in sexual harassment claims. Employees regularly ask us how to prove sexual harassment in the workplace. The basis for a sexual harassment claim can be confusing to many individuals. It is often the case that many employees don't know when inappropriate conduct crosses the line and can be deemed sexual harassment for purposes of filing an Equal Employment Opportunity (EEO) complaint or lawsuit.  In short, many employees do not know when sexual misconduct at work cross the line. This article discusses this.

Sexual harassment at work takes many forms in the workplace.  It is against the law to harass an employee or even an applicant for a position because of that person’s sex. Sexual harassment can include unwelcome sexual advances, unlawful requests for sexual favors, and other verbal or physical harassment of a sexual nature or context. Sexual harassment does not have to be of a sexual nature, however, and can also include inappropriate comments about a person’s sex. For instance, it is illegal to harass a female employee by making generalized offensive comments about females.

In sexual harassment cases, a victim and the harasser can be either male or female. Additionally, the victim and harasser can be of the same sex.  Conduct that might not be illegal, such as isolated instances and/or teasing, can become sexual harassment when it is so frequent that it creates an offensive work environment or alternatively results in an adverse employment action (e.g. termination of employee).  The individual engaging in sexual harassment can be a first or second-line (or other supervisor), a co-worker, client or customer.

Proving Sexual Harassment - the Elements

In order to show a sexual harassment claim for the purpose of filing an EEO complaint or lawsuit, employees generally need to show the following:

1.    That the employee (female, male) was the subject of unwelcome sexual harassment in the form of sexual advances, sexually inappropriate actions or a request for sexual favors;

2.    That the unwelcome harassment or advance was based on sex;

3.    That the sexual harassment affects a term or condition of employment; and

4.    That the employer was responsible for the supervisor's or other individual's conduct.

Examples of Sexual Harassment Claims

The following are a just a few examples of potential sexual harassment cases:

1.  A male supervisor hires a new subordinate female employee.  On her first day of work, the male supervisor asks the female subordinate out on a date. She declines. He continues to ask her out several more times despite her asking him not to do so. This can be a claim of sexual harassment.

2.  A male manager shares inappropriate videos (e.g. pornography) or photographs of females to employees at work. This can involve a claim of sexual harassment.

3.  A female supervisor makes sexually suggestive comments to a female subordinate at work.  She is told by the subordinate that her doing so makes her uncomfortable but the female supervisor continues the conduct. This can involve a claim of sexual harassment.

4.  A male supervisor makes offensive comments to a male subordinate, almost every week, about the employee's sexual orientation. This can give rise to a claim of sexual harassment.

The examples here of different types of sexual harassment are just a few of the numerous types that can occur at work. It would be difficult to provide every type of example, but the harassing behavior has to involve a key element of harassment based on sex. Sexual harassment claims can involve the telling of lewd jokes or making sexist comments, inappropriate touching, asking sexual questions or sending suggestive emails, text-messages or letters. Again, if a supervisor or co-worker makes a one-time inappropriate remark a claim or a strong claim for sexual harassment may not be made. However, it is important to consult an attorney in this type of matter to determine the best course of action.


If you need assistance with filing a claim of sexual harassment or representation for discrimination claims, please contact our office at (703) 668-0070 or at to schedule a consultation. Please also like and visit us on Facebook page.

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