It is very possible you were, depending on the type of sexual harassment claim.
Frequently, this question refers to hostile environment claims. Single-incident sexual harassment is rare in this context.
Other times, the single incident involves a quid pro quo or retaliation. However, in every situation, once is too much.
After a few moments in the sun during the controversial Anita Hill hearings in the early 1990s, #MeToo has rightly placed workplace sexual harassment back into the national consciousness.
The Equal Opportunity Employment Commission (EEOC) is charged with investigating and prosecuting workplace harassment claims.
However, this small federal agency has limited resources and, unfortunately, can have a political agenda.
So, do not be surprised if the EEOC refuses to follow up on your case. That action does not mean your case is meritless. It simply frees you to consult with a tenacious attorney who fights for you and not for politics.
Offensive computer wallpaper, off-color jokes, and demeaning behavior are a few examples of a hostile environment.
Hostile environments are against the law in New York as well as other states.
A standard applies to prove a hostile environment claim. The environment must be so toxic that the complainant is unable to effectively perform his/her job.
That toxicity could come from the overall work environment or the necessity to avoid certain areas of the workplace.
Quid Pro Quo
“This for that” sexual harassment is another example of single-incident workplace harassment.
Most employers know to avoid interaction like “Let’s discuss this promotion over dinner.” So, quid pro quos are usually much more subtle. Here are a few examples:
- You could have a workstation closer to the door if your appearance was more feminine.
- I can’t talk about this issue right now. Meet me at the Starbuck’s downstairs.
- I’m having a party Thursday night. If you come don’t stay too late because we have a meeting Friday morning.
Once is too much. Any quid pro quo, no matter how subtle, violates state and federal laws.
The most common EEOC sexual harassment complaint has nothing to do with the initial harassment itself.
Instead, retaliation actions focus on the employer’s response to sexual harassment allegations. Some examples include:
- Loss of opportunity, such as a cancelled trip to a conference,
- Sidelining the individual in important projects,
- Refusing to consult with the individual on important decisions,
- Disciplining the employee,
- Refusing to hire the person,
- Firing the employee, and
- Reassigning the person to a less-desirable location.
So, retaliation is not limited to “big ticket” items, like promotions or demotions. Retaliation could be something as subtle as a smaller office.
Legally, retaliation must involve a protected activity.
Sexual harassment protected activities include reporting alleged misconduct, speaking out against sexual harassment in general, encouraging another victim to file a report, and serving as a witness in an investigation.
Failure to investigate is an offshoot of retaliation.
When a victim officially reports sexual harassment, the employer has a duty to conduct a thorough, transparent, and expedient investigation.
A lapse in any one area is generally illegal.
Retaliation is also a one-time matter. Victims need not establish a pattern of misconduct.
Generally, victims need only establish a temporal connection (e.g. report in June and disciplinary write-up in July) to establish retaliation claims.
In this example, the write-up is only legal if the employer had a neutral, legitimate business reason for the adverse action.
The employer has the burden of proof, and the burden of persuasion, on this point.
You have the right to a harassment-free workplace.
For a free consultation with an experienced sexual harassment attorney in New York, contact Napoli Shkolnik PLLC. We have offices in ten states and Washington, D.C. as well as affiliates throughout the country.