Gregory A. Hall

Sexual Harassment FAQ’s

What laws make sexual harassment illegal?

There are both state and federal laws. Title VII is the federal statute that protects against sexual harassment. In Colorado, the state law the protects against sexual harassment is called the Colorado Anti-Discrimination Act (CADA). In general, the remedies available under the federal law are far superior to what can be obtained by seeking relief under CADA.

Is an employer legally liable for harassment by one of its supervisors?

Yes. In Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court held that an employer is vicariously liable under Title VII for severe or pervasive workplace harassment by a supervisor of the victim. If the harasser was the victim’s co-employee, however, the employer is not liable absent proof of negligence.

Can a co-worker be a supervisor?

In past harassment cases, the Supreme Court has reasoned that a person who has the power to hire or fire employees is a supervisor.  In Vance v. Ball State University, a case on appeal before the U.S. Supreme Court, Vance claimed that Ball State is vicariously liable for her harassers’ actions because at least one of the co-workers who harassed her functioned as a supervisor who could direct her daily tasks. The appellate courts, however, are split on whether co-workers can be supervisors. The Seventh Circuit Court of Appeals held in the Vance case that “actionable harassment” by a “supervisor” who had the authority to direct and oversee Vance’s daily work did not give rise to vicarious liability because the harasser did not also have the power to hire or fire Vance. The Supreme Court granted certiorari to resolve whether, as the Second, Fourth, and Ninth Circuits have held, the Faragher and Ellerth “supervisor” liability rule applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or, as the First, Seventh, and Eighth Circuits have held, is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

Can a co-worker create a hostile work environment?

Yes.  To establish liability however, the plaintiff must prove that the employer was negligent.  Where harassment by a co-worker is alleged, the employer can be held liable only where “its own negligence is a cause of the harassment.”  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998). Title VII liability is direct, not derivative: An employer is responsible for its own actions or omissions, not for the co-worker’s harassing conduct.

Can a customer create a hostile work environment?

Like a co-worker, a customer can create a hostile work environment, but the employer is only liable if proven to be negligent in providing corrective relieve to the victim of the harassment.

What are some examples of conduct that might be considered illegal sexual harassment?

Undesired and unsolicited sexual advances; propositions for sexual favors; physical touching that is sexual in nature; verbal communications that are of a sexual nature that the recipient must endure in order to keep her job. In addition, bullying, coercion or intimidation motivated by gender animus can constitute illegal harassment. Offhand comments, joking, simple teasing, or incidents that aren’t very serious will not support of claim of harassment. If the harassment gets to the point where it creates a harsh or intolerable work environment, the victim needs to follow the employer’s policy on harassment.  For the most part, a single isolated incident will not be enough to prove hostile environment harassment unless it involves extremely outrageous and egregious conduct. The courts will try to decide whether the conduct is both “serious” and “frequent.”
The EEOC defines sexual harassment as: Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

1. Submission to such conduct was made either explicitly or implicitly a term or condition of an individual’s employment,
2. Submission to or rejection of such conduct by an individual was used as the basis for employment decisions affecting such individual, or
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

Can one man sue another man for sexual harassment?

Yes. In Oncale v. Sundowner Offshore Services the Supreme Court set the precedent for same-sex harassment and sexual harassment without motivation of “sexual desire” stating that any discrimination based on sex is actionable so long as it places the victim in an objectively disadvantageous working condition, regardless of the gender of either the victim, or the harasser.  The EEOC’s guidance maintains that the victim and harasser could be any gender and that the other does not have to be of the opposite sex.

How is gender discrimination or harassment different from sexual discrimination or harassment?

Gender discrimination is a subset of sex discrimination. It is often non-sexual but is nonetheless directed at a person because of that person’s sex. Examples of discriminatory comments and behaviors include:

  • Asking whether an employment candidate is married or plans on having children;
  • Making reference to an employee “PMS”ing;
  • Claiming that a woman should be more feminine and wear makeup;
  • Claiming that a person isn’t fulfilling certain gender role;
  • Calling an effeminate male a “fairy,” or “prissy” or stating that he should ‘act more like a man; or
  • Refusing to hire a man in a “woman’s job” and vice versa.

Sexual Orientation Discrimination

Sexual orientation discrimination comes up, for instance, when employers enforce a dress code, permitting women to wear makeup but not men, or require men and women to only use restrooms designated for their particular sex regardless of whether they are transgendered. There are no federal laws against discrimination against employees of a certain sexual orientation. However, it may be able to advance a claim of gender discrimination based on stereotype under Title VII. To do this a plaintiff would have to show that s/he was discriminated against because s/he possessed “traits not stereotypically associated with their gender,” such as mannerisms, appearance, speech, etc. The Colorado Anti-Discrimination Act protects against sexual orientation discrimination, but the remedies under that law are anemic. Executive Order 13087, signed by President Bill Clinton, outlawed discrimination against federal workers based on sexual orientation.

Is retaliation illegal?

Yes. An employer cannot retaliate against an employee for opposing discrimination in the workplace or for cooperating with an investigation or lawsuit based upon discrimination. Victims of discrimination who speak out against sexual harassment are often labeled troublemakers who are on their own power trips, or who are looking for attention. Similar to cases of rape or sexual assault, the victim often becomes the accused, with their appearance, private life, and character likely to fall under intrusive scrutiny and attack. People who engage in protected EEO activity risk hostility and isolation from colleagues, supervisors, fellow workers, and even friends. They may become the targets of mobbing or relational aggression. In the 2006 Supreme Court case of Burlington Northern & Santa Fe Railway Co. v. White, the standard for proving retaliation was revised to include any adverse employment decision or treatment that would be likely to dissuade a “reasonable worker” from making or supporting a charge of discrimination.

Do I need to file a charge of discrimination with the EEOC?

If you plan to file a lawsuit against your employer you must timely file a charge of discrimination with the EEOC. If you are a federal employee, you must contact your Agency’s EEO counselor within 45 days of the date of discrimination in order to initiate the complaint process.

Should I hire an experienced employment lawyer?

Employment discrimination cases are extremely difficult for a variety of reasons.  Employers are notorious for fighting these cases tooth and nail.  If you have a case worth taking to trial, you should get a lawyer to represent you. Denver employment attorney Gregory A. Hall has been handling employment cases since 1996. Attorney Hall has handled a variety of employment cases under Title VII, ADA, ADEA, Equal Pay Act, the Pregnancy Discrimination Act, the Rehabilitation Act and the FMLA.
If you have a harassment case or claim of discrimination, contact Denver employment lawyer Gregory A. Hall to discuss your claim:
Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584
The information on this blog or website is not legal advice.

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