Who Can Sue for Sexual Harassment?

Who Can Sue for Sexual Harassment

If your workplace is laced with sexual tension or you are being singled out because of your gender, you may feel like the only way out is through the courts. But sometimes it can be hard to tell if you would be eligible to file a private civil rights lawsuit. You may be wondering just who can sue for sexual harassment.

In this blog post I will review the sexual harassment and sex discrimination portions of Title VII of the U.S. Civil Rights Act. I will also look at how these federal laws protect various possible plaintiffs. Finally, I will compare the remedies of filing a private or class action lawsuit and lodging an EEOC complaint.

What Counts as Illegal Sexual Harassment?

Sexual harassment is prohibited by state and federal law. Under Title VII of the U.S. Civil Rights Act, it is unlawful for an employer to harass you because of your sex. "Sexual harassment" is a form of gender discrimination that can include unwelcome sexual advances or touching, requests for sexual favors, and other verbal or physical harassment that is sexual in nature.

Harassment can also include offensive remarks about a person's sex or gender expression. This is true even if the comments do not directly target the employee. For example, if a supervisor regularly makes comments about how "you can't trust men," or "women are never good at math," that could be a form of sexual harassment.

Not every passing comment will rise to the level of a sexual harassment lawsuit, though. To be eligible to file a complaint your employer must have:

  • Based an employment decision on a person's sex (this includes hiring, firing, promotion, wages, tasks or shift assignments), or
  • Allowed a pattern of offensive behavior so frequent or severe it creates a hostile work environment.

When teasing crosses the line into actionable harassment under the federal law may depend on your workplace and the normal demeanor of employees. The standard for a hostile work environment may be different in an office setting than on a construction site. Courts will look at whether a reasonable person would have been offended in a similar situation.

Can I Sue for Sexual Harassment If I Am a Man?

Anyone can file a lawsuit for sexual harassment, regardless of gender. Men and women both face harassment in the workplace, though sometimes it looks different depending on the sex stereotypes involved. For example, a man may be able to file a civil rights action if his employer regularly tells him to "man up" or refuses to assign him to tasks that "take a woman's touch."

Can I Sue if I Am the Same Sex as My Harasser?

Many people believe that a woman cannot be sexually harassed by a woman or a man by a man. That's not true. It doesn't matter who is performing the sexual harassment - man or woman - as long as the harassment is based on your sex. Similarly, you can sue for patterns of behavior by superiors, staff, coworkers, and even customers, depending on how your employer responds to complaints.

Can I Sue if I Am Gay?

Gay and lesbian employees face special challenges in the workplace. Until recently, there was no federal protection for sexual orientation discrimination. However, in recent years, the Equal Employment Opportunity Commission (EEOC) has begun to interpret Title VII to protect against sexual harassment based on sexual orientation. While some courts have refused to follow that interpretation, others are now willing to enforce Title VII's prohibition against sexual harassment for the benefit of the LGBT community.

Can I Sue if I Am Trans*?

Gender identity issues and the inherent difference transgender people experience from sex stereotypes can often result in sexual harassment in the workplace. The U.S. Supreme Court and several federal courts have come to the defense of transgender employees, ruling that sexual harassment based on gender identity or gender expression are illegal under Title VII.

Can I Sue if I Am Paid Under the Table?

Undocumented workers and other cash employees can often feel trapped in a job that involves sexual harassment. Their employers may threaten to report them to the INS or the IRS if they file sexual harassment or discrimination complaints. While there are some risks involved, under the table employees are entitled to protection against sexual harassment and hostility in the workplace.

Getting Relief Through the EEOC Complaint or a Private Lawsuit

When sexual harassment happens, you have options in how to fight it. An employment discrimination attorney can help each step of the way, from filing a complaint with the EEOC or pursuing a private individual or class-action lawsuit.

Usually, a person who has a sexual harassment complaint will need to go through the EEOC administrative complaint process first, before filing a private lawsuit in federal court under the federal law. However, exceptions do exist. Your employee rights lawyer will help you decide whether any of those exceptions apply to you. Otherwise, an EEOC counselor will investigate your claim and attempt to negotiate a solution to your complaint. If you raised a valid complaint, but the EEOC cannot resolve it, it will issue a "right to sue" letter. At that point, your case can go in two directions:

EEOC Litigation

In some cases, the EEOC will elect to conduct litigation directly to get relief for the victims of sexual harassment and sex discrimination. This can result policy changes and monetary relief. But the agency's resources are limited, and there are many valid sexual harassment complaints that they cannot represent.

Private Sexual Harassment Lawsuits

If the EEOC doesn't take your case, or if you would prefer to have more control over your litigation, you can also file a private lawsuit, individually or on behalf of a class of people like you. If your lawsuit is successful, you will have access to several remedies:

  • Reinstatement to your job or an equivalent position;
  • Policy and training changes;
  • Back pay (times 3) for money you lost because of the discrimination;
  • Fringe benefits lost;
  • Emotional distress damages; and
  • Attorney fees and court costs.

Get Help Filing Your Sexual Harassment Lawsuit

A lack of resources should never prevent you from getting protection from sexual harassment. No matter who you are, our employment discrimination attorneys are here to help. If you feel like your employer is making your office or job site a hostile workplace, contact us. We'll meet with you and help create a strategy to file a sexual harassment complaint and get you the relief you need.

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