Workplace sexual harassment can come in many varieties, from unwanted physical contact by your direct supervisor or even your company’s CEO to unwelcome verbal comments by individuals who don’t work for your employer. While the former may be a more obvious instance of illegal sexual harassment, the latter is also potentially a circumstance in which you can successfully pursue a sexual harassment case. To find out how to respond in the wake of the harassment you’ve endured, get advice from an experienced New York sexual harassment lawyer about your options.
In circumstances involving harassment by a supervisor, the U.S. Equal Employment Opportunity Commission has stated that an “employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages.”
In the Second Circuit, which means federal cases in New York, Connecticut, and Vermont, victims face a slightly steeper challenge if the harasser is a non-employee or non-supervisory coworker. While this hurdle is higher, it is far from insurmountable.
Take, for example, this recent federal appellate case. The employee, H.R., was a planner for a small town in Connecticut. In 2013, a local developer, sent correspondence to town officials alleging that the planner and one of her subordinate employees were engaging in sexual interaction inside Town Hall.
The town manager consulted legal counsel and the police about criminal action against the developer but when he received advice that the town “couldn’t do anything,” no additional action ensued.
An Official Investigation... After the Victim Had Resigned
The developer was still communicating with town officials about what he alleged was sexual activity involving the planner and her subordinates in 2017. That same year, H.R. took a job in Tennessee and resigned from her position with the town. The town initiated an official sexual harassment investigation, but not until the planner had already resigned.
The planner sued in federal court, alleging she endured a hostile work environment in violation of Title VII.
The central thrust of the town’s defense was that it could not be liable for the developer’s harassing actions because “it acted appropriately in response to his behavior.”
An Employer Can Take Action and Still Be Liable
When a harasser is a non-employee or a non-supervisory coworker, the victim must prove that the employer engaged in direct negligence. That means demonstrating that the employer “failed to provide a reasonable avenue for complaint or that it knew, or… should have known, about the harassment yet failed to take appropriate remedial action.”
The law does not require a victim to prove that her employer took no action. She can still succeed by convincing the court that, although the employer took some action, the action it took was inadequate.
In the planner’s lawsuit, both sides agreed that the town had a procedure for complaining and that the process was reasonable.
The Chief Focus Must Be Ending the Harassment
However, a reasonable jury could side with the planner and decide that the town’s steps were insufficient, according to the appeals court. To be adequate, an employer’s actions must focus primarily on stopping the harassment. H.R.’s employer contacted the local police, but that action focused more on whether the developer “could be criminally prosecuted, rather than on preventing further harassment of” the planner.
After finding out the developer could not be criminally charged, the town ceased acting for four years until 2017 when it engaged in a formal sexual harassment investigation… that began only after H.R. quit her job. The town allegedly did nothing in the intervening four years that might have dissuaded the developer from harassing the planner. For example, no one from the town government directly informed the developer that he was engaging in inappropriate sexual harassment and must cease. The town contacted lawyers but did not consult an employment attorney until after the planner had resigned.
The alleged facts that the employer neither contacted an employment attorney nor opened a formal sexual harassment investigation until the planner had left her job – and had endured an additional four years of harassment – alone were enough to provide the planner with a triable sexual harassment claim and require the rejection of the employer’s request to throw out the case.
When you experience sexual harassment at work, your employer may respond in a variety of ways. Too many employers do nothing or very little as they seek to sweep the matter “under the rug.” If that has happened to you, the dedicated New York sexual harassment attorneys at Phillips & Associates are here to help. We understand harassment can harm you not just emotionally but physically and economically as well. We also recognize that sexual harassment is often a highly sensitive matter. To learn more, contact us online or at (833) 529-3476 to set up a free and confidential consultation.