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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

What Are The Options Of A Sexual Harassment Victim?

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In 1986, the U.S. Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that sexual harassment which is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment is unlawful.  Almost thirty years later, sexual harassment persists as a serious problem in the workplace.

As a victim of sexual harassment, you should not blame yourself for another employee’s actions.  You cannot control the words or actions of another employee.  The words and actions of sexual harassers are their choice—not your choice.  You should not feel ashamed about being the target of behavior that you do not want and cannot control.  Feelings of embarrassment, shame, and isolation sometimes prevent a sexual harassment victim from confronting the harasser or reporting the behavior.  Few people want to disclose or discuss the details of an egregious work environment.  The U.S. Seventh Circuit Court of Appeals in Snider v. Consolidation Coal Co., 973 F.2d 555 (7th Cir. 1992) recognized this problem in finding that the trial court erred as a matter of law in excluding testimony at trail from an expert witness that “few victims of sexual harassment make a contemporaneous complaint, particularly if the harassment occurs in an occupation traditionally dominated by members of the opposite sex.” 

As a victim of sexual harassment, you should not simply ignore the behavior or hope the behavior will somehow eventually stop.  Remaining silent will only allow the harasser to continue the unwanted sexual behavior towards you and possibly other employees.  Remaining silent could also potentially jeopardize your ability to bring a lawsuit based on the hostile work environment harassment.   

Establishing The Behavior Is Unwelcome

As explained by the U.S. Eighth Circuit Court of Appeals in Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th Cir. 1996), “the gravamen of any sexual harassment claim” is that the sexual behavior was “unwelcome.”  Thus, in order to establish a claim of hostile work environment sexual harassment, a victim must indicate by his or her conduct that the sexually harassing behavior is unwelcome.  “The question is whether,” as observed by the court in Morton v. Steven Ford-Mercury of Augusta, Inc., 162 F.Supp.2d 1228 (D. Kan. 2001), “under the totality of the circumstances, [the victim] indicated by her conduct that the alleged harassment was unwelcome.”  Therefore, it is important that a sexual harassment victim take action to establish that the sexually harassing behavior is unwelcome.

Notice To Sexual Harasser

Notice to the sexual harasser is one way for a sexual harassment victim to indicate by his or her conduct that the sexually harassing behavior is unwelcome.  Although not appropriate or possible in some cases, a sexual harassment victim should take action to notify the harasser that the sexual behavior is unwanted.  There are several ways a sexual harassment victim can notify the harasser that the sexual behavior is unwanted, including telling the harasser to stop the behavior, telling the harasser not to engage in the behavior, telling the harasser the behavior is inappropriate or offensive, or telling the harasser the behavior is upsetting or disturbing.  By communicating to the sexual harasser that the sexual behavior is undesirable or offensive, a sexual harassment victim has indicated by his or her conduct that the sexual behavior is unwelcome.

Notice To Employer 

Notice to the employer by complaining about the sexual behavior is another way for a sexual harassment victim to indicate by his or her conduct that the sexually harassing behavior is unwelcome.  If your employer has a company or employee handbook, you should review the handbook in order to determine whether the employer maintains a complaint procedure for reporting or complaining about sexual harassment in the workplace.  Generally, an employer’s complaint procedure for reporting or complaining about sexual harassment will identify a specific person or specific job title as the designated recipient of sexual harassment complaints.  For example, the employer’s complaint procedure will inform employees who believe they are experiencing sexual harassment in the workplace to make a complaint to their immediate supervisor, a designated management-level employee, or a designated employee in the Human Resources Department.  By complaining to the employer about the sexually harassing behavior, a sexual harassment victim has indicated by his or her conduct that the sexual behavior is unwelcome.

Protection Against Retaliation

Victims of sexual harassment sometimes are understandably reluctant to complain about sexually harassing behavior in the workplace because of a fear of retaliation.  Unfortunately, some courts, such as the U.S. Fourth Circuit Court of Appeals in Barrett v. Applied Radiant Energy Corp., 240 F.3d 262 (4th Cir. 2001), have determined that “a generalized fear of retaliation does not excuse a failure to report sexual harassment.”  When a sexual harassment victim does not complain about the sexual harassment because of a belief he or she would be retaliated against for complaining, courts, such as the U.S. Second Circuit Court of Appeals in Leopold v. Baccarat, Inc., 239 F.3d 243 (2d Cir. 2001), have required victims to produce evidence “to the effect that the employer has ignored or resisted similar complaints or has taken adverse actions against employers in response to such complaints.”  However, Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, and the Florida Civil Rights Act (FCRA), which is Florida law, protect employees against retaliation for complaining about sexual harassment in the workplace.  Under Title VII and the FCRA, employers are prohibited from subjecting an employee to an adverse employment action, such as a reduction in pay or hours, demotion, or termination, in retaliation for complaining about sexual harassment at work.

Pursuing Legal Remedies

Title VII of the Civil Rights Act of 1964, which is federal law, and the Florida Civil Rights Act, which is Florida law, protect employees against sexual harassment in the workplace.  As explained by the U.S. Eleventh Circuit Court of Appeals in Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982), employees are not required to “run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a laving.”  As a victim of sexual harassment, you have the option of bringing a lawsuit against the employer for the hostile work environment sexual harassment.  Victims of sexual harassment are entitled to compensation for any lost wages or mental and emotional suffering they have endured as a result of the hostile work environment sexual harassment.  The first step towards bringing a lawsuit based on the hostile work environment sexual harassment is filing an administrative charge of discrimination with the appropriate governmental agency, such as the U.S. Equal Employment Opportunity Commission. 

Consultation With Employment Law Attorney   

We suggest that victims of sexual harassment consult with an experienced employment law attorney before making an internal complaint of sexual harassment to the employer or filing an administrative charge of discrimination with the U.S. Equal Employment Opportunity Commission.  An experienced employment law attorney will be able to provide you with guidance and assistance in protecting your legal rights and safeguarding your interests.   

We have extensive experience representing employees who have been the victim of sexual harassment in the workplace.  If you have been the victim of sexual harassment or have questions regarding sexual harassment in the workplace, please contact our office for a free consultation. 

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