Sexual harassment has long been recognized as a form of gender discrimination arising under both Ohio’s anti-discrimination laws and Title VII of the Civil Rights Act. There are two types of sexual harassment: (1) harassment that creates an offensive or hostile environment; and (2) quid pro quo harassment, where a supervisor demands sexual favors as a condition for a job. To prove sexual harassment, an employee must prove the following:
- The employee is a member of a protected class;
- The employee is subject to unwelcome sexual harassment;
- The sexual harassment was based on the employee’s gender;
- The sexual harassment created a hostile work environment; and
- The employer should be held liable for the sexual harassment.
Although gender is an element of these claims, the victim and the harasser can be the same gender. The harasser can be a supervisor, a co-worker, or even someone who is not an employee of the employer, such as a client or customer. However, the analysis will differ depending on whether the accused harasser is a co-worker or supervisor. In circumstances where harassment was perpetrated by a co-worker, the employer will only be liable for the co-worker’s conduct if the employee can show: (1) the employer knew or should have known of the alleged sexual harassment; and (2) the employer failed to implement prompt and appropriate corrective action upon learning of the harassment. In other words, an employer should have a procedure in place to fully investigate sexual harassment when it learns it is occurring. The investigation should occur promptly and should include interviews of the claimant, the alleged harasser and any witnesses that either party identifies. Once the investigation is complete, the employer should implement whatever corrective action or discipline is deemed appropriate.
If the sexual harassment is perpetrated by a supervisor, the analysis is slightly different. If the sexual harassment results in an action such as discharge, demotion or reassignment, the employer is going to be strictly liable. If there has not been any tangible adverse employment action, an employer can defend itself from liability by proving: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.
An employee who wishes to bring a claim for sexual harassment under federal law must first file a complaint with the Equal Employment Opportunity Commission (EEOC). The complaint must be filed within 300 days of the unlawful act. Keep in mind that Ohio also has a statute that prohibits sexual harassment. Unlike the federal law, an employee wishing to bring a claim under Ohio law is not first required to file a complaint with the EEOC. While damages vary slightly between federal and state law, an employee who prevails on a sexual harassment claim may seek a full range of damages including economic and non-economic compensatory damages, punitive damages, attorney’s fees and other injunctive and equitable relief.
If you feel you have been a victim of sexual harassment, please contact Dworken & Bernstein for a free consultation.