Sexual Harassment and Sexual Assault: Lawsuit, Crime, or Both?

Senior businessman puting his arm on his secretary's knee.

The words sexual harassment can mean a lot of things. Some are verbal, or make a person uncomfortable. But others cross the line into sexual assault. When physical sexual harassment occurs, it can raise the question of whether you should file a lawsuit, report it as a crime, or something else.

In this blog post I will discuss how state and federal sexual harassment employment laws interact with criminal laws against sexual assault. I will explain how a criminal case may affect your lawsuit for sexual harassment, and how you, the plaintiff (or victim in criminal court) can end up stuck in the middle.

Sexual Harassment and Sexual Assault Have Different Standards

Just because something is Illegal doesn’t automatically mean it is a crime. Laws can sometimes regulate behavior of individuals, companies, or even industries by allowing a government agency or individuals to file a lawsuit. The penalty for violating these laws is the money paid to the people hurt when the laws are violated.

That’s the case with Title VII of the Civil Rights Act. This law makes it illegal for your employer to allow sexual harassment in the workplace. That includes any unwanted conduct, including both physical contact or inappropriate comments and jokes, that either:

  • Are a condition of employment
  • Are severe or happen often enough to create a hostile work environment

Under Title VII, sexual harassment includes anything that a reasonable person would find sexually offensive.

State sexual assault crimes usually aren’t that broad. In New York, for example, the crimes of sexual abuse, rape, and forcible touching all require physical sexual contact, though that is not limited to intercourse. Sexually predatory language, even repeated requests for sexual contact, don’t qualify. New York also has laws against stalking; however these laws again center on a threat to physical or mental health, or employment. That means that sometimes sexual misconduct will qualify as sexual harassment at work without being a crime.

Where to Go First When Sexual Harassment and Sexual Assault Overlap

The victims of work-related sexual assault can often feel pulled in different directions. It can be hard to know where to go first: the police or your supervisor.

When there has been a physical sexual assault, you should almost always go to the police first. Most police departments have special tools (such as “rape kits”) and techniques to gather evidence of what happened in a compassionate and dignified way. Some of these techniques are time-sensitive. If you wait to report sexual assault, it may be less likely that the abuser will face criminal charges.

Once you have worked with the police to file a report and make a statement, you can use those documents to file a complaint with your supervisor or HR department. Ask the police for copies of the report and your statement, as well as the contact information for any officer you worked with. Keep copies for yourself and provide copies to your employer for use in its investigation. If your employer fails to take appropriate steps to stop sexual harassment and sexual assault in its workplace, you can also use these documents (including your internal complaint) in filing a claim with the Equal Employment Opportunity Commission, or in federal court.

How a Criminal Investigation Can Affect Your Sexual Harassment Claim, and Vice Versa

When sexual harassment and sexual assault investigations happen at the same time, it can sometimes complicate both. There are differences between workplace and criminal investigation processes, and the accused’s rights in both cases that can sometimes be contradictory.

In some cases, employers will take a “wait-and-see” approach. They will delay investigating sexual harassment claims that raise criminal issues, letting police take the lead on interviews and evidence gathering. If the police find enough to file charges, the HR department can use those charges as a basis for discipline at work.

However, even when employers decide to let police do the work, they still have a duty to protect you from any continued sexual harassment that might happen in the meantime. That could mean separating you and your harasser, assigning you to different departments, shifts, or locations, removing him or her from his or her supervisory role, or even issuing a temporary suspension.

If your employer does decide to continue the investigation alongside the police, things can get more complicated. Employers can require a person accused of sexual harassment to cooperate with the company’s internal investigation on the threat of termination. Employees do not generally have the right to have an attorney present during these investigations (unless a collective bargaining agreement says otherwise). But if an accused employee admits to misconduct, those admissions can be used by police and prosecutors in the criminal context. Because of this, if the accused harasser has already hired a lawyer, that lawyer may advise them not to cooperate with the workplace investigation.

When workplace sexual harassment takes the form of criminal sexual assault, it can create a knot of procedural questions as police, HR personnel and others sort out their respective roles in the investigation. And that can leave the victims of these most severe forms of sexual harassment feeling alone or left behind.

But you don’t have to be. At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how to navigate the intersection of sexual harassment and sexual assault. We will help you throughout the process, and ensure that your rights are protected at work and in court. Contact us to schedule a consultation.

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