Sexual harassment is described in Equal Employment Opportunity Commission (EEOC) guidelines as:
“unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature [when] submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment…[and] is used as the basis for employment decisions…or…has the…effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
Debates about the nature and effect of sexual harassment in law have been ongoing for years. Those who refuse to accept sexual harassment at work, in fact, do face (in addition to verbal attacks) lack of cooperation from male co-workers, poor job evaluations, promotion rejection, reassignments and demotions, even termination of employment.
Sometimes the workplace effects are directly, sometimes indirectly caused by the sexual harassment. The victims of this treatment develop stress-related psychogenic conditions like high blood pressure, chronic headaches, and ulcers. One of the complication with workers’ compensation claims for sexual harassment injury is that the claimant has to prove cause of an injury. Work-related origin may be hard to demonstrate in a sexual harassment prone work environment.
In the case of Cox v. Chino Mines/Phelps Dodge (1990) the New Mexico Court of Appeals recognized that injuries sustained due to on-the-job sexual harassment could be compensable under Workers’ Compensation. The Court did recognize that “the policy behind workers’ compensation laws does not provide an adequate remedy for sexually workers.” The Court recommended that claims for such injuries are better pursued under tort actions.
Workers’ compensation law was designed to prevent the need for court intervention for workplace injury. All 50 states have some kind of exclusivity provision in their workers’ compensation statutes [dec96_biddle.pdf]. In most states, if an injury victim applies for workers’ compensation, the victim gives up the right to take the case to a lawsuit. In some states, like Arizona, workers’ compensation is the only legal remedy for work injury cases. The recommendation by the New Mexico court is surprising for that reason. The Court’s finding that workers’ compensation does not have adequate compensation remedies for injuries associated with sexual harassment points to an unfortunate truth which many states are trying to work out in legislation.
When someone sues an employer for sexual harassment, the process itself is very difficult and injurious. In one case described in a recent Forbes article, the complainant won her case and received a sizable financial remuneration, but was terminated from her job and found the entire process humiliating. The sit took a huge toll on her and set her back professionally. A 2015 Cosmopolitan survey found that more than 70 percent of workplace sexual assault victims never report their abuse.
Lawyer and author Donna Ballman cautions that it is “extremely hard to prove and win a sexual harassment case. She has found that “retaliation seems to be the norm, rather than the exception.” Yet, according to Ballman, sexual harassment is about power, not sex. If victims don’t speak up, the harasser will keep doing it. and accelerate their behavior.
Ballman recommends a number of steps for a sexual harassment victim to take to support a sexual harassment claim.
- Document any offers or threats made by the harasser to submit to sexual harassment or to protect from it (quid pro quo sexual harassment). Write down the dates, times, details, and names of any witnesses. Don’t worry if there are no witnesses. Courts know that abusers rarely let there be witnesses.
- Document any comments and any different treatment you receive after your response to the episode. A hostile environment after the harassment is the most frequent retaliation.
- Keep your notes in a safe place–especially not on your work computer or in an office desk drawer. If you are fired, you will be forbidden to take away any documents and key information will be conveniently lost.
- Keep copies of any notes or files the harasser sends you.
- The Supreme Court says that reporting sexual harassment is a requirement, before you can sue. Make sure you follow all your company rules about harassment. Most companies have someone to whom you can report the instances (and alternatives if your harasser is one of them). She recommends putting a written report in the hands of the person you report the incident to.
- File a complaint with the EEOC. You have between 180 and 300 days to file with the government commission.
- Find a good employment lawyer.
The law office of Joshua Borken can take strong, timely action for you so you can receive the compensation you deserve. Please contact us to learn more.