Sexual and Racial Harassment

How to Spot It?

Sexual harassment, although prohibited by law, continues to be the most prevalent form of workplace harassment.  It is insidious, complex and takes many forms.  It equally applies to both males and females.

When it is so hostile and severe that it creates an abusive or hostile work environment there are both State and Federal laws to protect an employee.

Examples of it include:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:

• Offering employment benefits in exchange for sexual favors or threatening reprisals after a negative response to sexual advances
• Visual conduct: leering, making sexual gestures, displaying of suggestive objects or pictures, cartoons, or posters
• Verbal conduct: making or using derogatory comments, epithets, slurs, and jokes
• Verbal abuse of a sexual nature, graphic verbal commentaries about an individual's body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes, or invitations
• Physical conduct: touching, assault, impeding or blocking movements.

If you believe you are being subjected to sexual harassment in the workplace we strongly recommend that you keep clear and detailed notes of each occurrence.  These notes should include the name(s) of the harassers, any reports to other employees that you made and the dates of each such incident.

If you are a victim, it is recommended that you immediately seek the advice of a competent attorney in order to protect yourself.

If you are an employer who receives notice or a report of sexual harassment, you should immediately seek the advice of your attorney to help you take the right steps to protect your employee and your company's interests.  Equally important, your company should have a clear and strong policy prohibiting sexual harassment, and it should be consistently applied, even if that means disciplining the highest level of management.

At David F. Zuppke, PLC, we can assist you in protecting your rights and help you understand the best course of action to take.

What can you do?

The first thing an employee should do if they believe they are a victim of this illegal behavior is to immediately report it to the supervisor or human resource department where you work.  If the harasser is your immediate supervisor, you should report it to his or her supervisor.

Once an employer receives a complaint of it or witnesses the conduct first hand, they have a legal duty to conduct an investigation to determine the legitimacy of the complaint.  Once they confirm the conduct they are required under the law to take "effective remedial measures to prevent it".

If, for example, they issue a verbal or written warning to the harasser and it doesn't stop the conduct that too should be reported.  Under those circumstances the employer is required to take additional steps to stop it.  Usually, this would mean issuing a harsher penalty such as suspension or termination of the harasser.

Protection against retaliation

The law also prohibits any form of retaliation for reporting sexual harassment.  Examples of illegal retaliation include: 

Termination, denial of promotion, threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, shunning the victim and/or taking any adverse actions against the reporter.

Even after receiving a report of harassment, the law makes it illegal to take any actions, including threats to retaliate, in order to prevent a victim from filing a complaint with a government agency

to protect their legal rights.

Post termination retaliation

It is also illegal for an employer to take retaliatory actions designed to interfere with the individual's prospects for employment, such as giving an unjustified negative job reference, refusing to provide a job reference and informing an individual's prospective employer about the individual's protected activity.

Employers who have violated workplace retaliation laws can be required to reinstate the employee, pay back wages and may be subject to punitive damages because of workplace harassment or retaliation when an employee has been successful at proving retaliation.