Sexual and Sexual Orientation Harassment
Sexual harassment includes any unwelcome sexual advances or behavior of a sexual nature, such as lewd remarks, derogatory comments, touching, groping, sharing of pornography, or assault. The federal law prohibiting sexual harassment is Title VII of the Civil Rights Act of 1964. This law applies to employers with at least fifteen (15) employees. Title VII is enforced by the Equal Employment Opportunity Commission (“EEOC”). Rhode Island employers are also required to abide by the Fair Employment Practices Act (“FEPA”), which applies to smaller employers.
In addition, despite improvements in societal acceptance of LGBTQ individuals, sexual orientation discrimination in the workplace is still a prevalent problem. Until recently, members of this class have not been explicitly protected under Title VII for sexual orientation or transgender status. However, Title VII prohibits gender discrimination, which the EEOC has interpreted to include sexual orientation and gender identity discrimination. Many states, including Rhode Island, have also enacted state laws to specifically address these types of employment discrimination.
Under the FEPA, like Title VII, sexual harassment is never allowed and is prohibited in all workplaces. In most cases, Rhode Island law protects workers more than federal law does. In addition, under the FEPA, damages are not capped based on the size of the employer, as they are under federal laws, such as Title VII. Furthermore, the FEPA prohibits harassment and dscrimination on the basis of an employee’s sexual orientaton and geneder identity or expression.
QUID PRO QUO SEXUAL HARASSMENT
Quid pro quo harassment occurs if a job, continued employment, or an employment benefit is conditioned on an employee submitting to sexual advances. This type of harassment can only be perpetrated by an authority figure with the power to affect an individual’s employment status, such as a supervisor or manager. For example, if an employee’s manager offers a raise in exchange for a date, this is quid pro quo harassment. Other similar benefits that could give rise to a sexual harassment lawsuit, when premised on an employee’s acceptance of harassment, include a more favorable working schedule, a promotion, not terminating the employee, desirable job assignments, or hiring an employee in the first place.
HOSTILE WORK ENVIRONMENT SEXUAL HARASSMENT
A hostile work environment includes when harassing behavior is so bad or so pervasive that it changes the workplace and makes it abusive. It can be perpetrated by coworkers, supervisors, or managers.
In these cases, an employee may be able to recover damages for hostile work environment harassment if the employee can show that he or she received unwelcome sexual advances, remarks, or behavior based on sex, and the harassment was pervasive or severe enough to change the individual’s employment conditions. In the context of sexual orientation harassment, examples of unlawful harassment may include calling someone offensive names related to their sexual orientation, making stereotyped comments about a person’s gender identity or telling someone that, because of their sexual orientation, that they are less qualified for a certain position
To be actionable, the harassment cannot be trivial or a mild, isolated event. A court will look at whether a reasonable person in the employee’s position would feel harassed. For example, if a coworker repeatedly touches the employee, tries to go on dates with the employee, and gives or offers sexually charged gifts, but human resources does nothing when the employee reports this conduct, this would rise to the level of a hostile work environment and be actionable sexual harassment.
It is smart for an employee to tell a harasser that the statements or acts are unacceptable and to try to notify the employer of the harassment, using the procedures outlined in an employment handbook. If no procedures are specified, the employee should report the harassment to human resources. In Rhode Island, employers can be liable for the harassing acts of non-employees, such as vendors or independent contractors, if the employer knew or should have known about the acts, yet failed to take immediate and proper corrective steps to address them.
If you or someone you know believe you have been harassed due to gender, sexual orientation or gender identity, please contact us to discuss your matter.