It doesn’t matter the nature of the organization – the workplace should feel like a safe and secure environment for its employees. However, in countless unfortunate cases, it can be a place of unwelcomed interactions leading to sexual discrimination, harassment, or worse – sexual assault.Not only are these actions physically and emotionally abusive, they create an unhealthy, unproductive atmosphere in the workplace that holds employers accountable. In 2018, the #MeToo movement raised considerable awareness and visibility of sexual harassment and assault in the workplace, making clear the personal toll it takes on victims’ lives. As a result, more and more victims are taking legal action to bring justice and closure to their cases. Sexual assault and sexual harassment are both situations that can be difficult to distinguish. For instance, a common question that arises in these cases is “Where does sexual harassment end and sexual assault begin?” Unfortunately, the answer to this question may not be as clear as you would think. Below we help to develop clarity around situations of sexual assault in the workplace, and what victims need to know after encountering such behaviors.
Understanding the Difference Between Sexual Harassment and Sexual Assault in the Workplace
The difference between sexual harassment and sexual assault can be a gray area somewhat ambiguous to distinguish. Not only is there confusion between these terms, many people diminish sexual harassment as an issue that takes a distant back seat compared to sexual assault. The fact of the matter is, there’s considerable overlap between how these occurrences are defined, and within the continuum of harm, sexual harassment may eventually lead to sexual assault.
Sexual Harassment Defined
Sexual harassment, which is enforced by the EEOC, constitutes illegal sex discrimination under Title VII of the Civil Rights Act of 1964. The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature, or based on someone’s sex, that is severe or pervasive and affects working conditions or creates a hostile work environment.
There are a number of important phrases in this definition that are vital to understanding your rights as well as any potential legal claims you may have:
- “Unwelcome” – This might seem obvious, but to establish sexual harassment as illegal, it must be unwelcome. Unwelcome simply means unwanted. As such, it is important to communicate to the harasser that the conduct makes you uncomfortable and that you want it to stop.
- Conduct “of a sexual nature” or “based on sex” – Many forms of verbal, nonverbal, physical, or visual conduct that are of a sexual nature may be considered sexual harassment.
- Verbal or written – Examples include:
- Making comments about an individual’s body, clothing, sexual orientation, personal behavior, or relationships.
- Suggesting or requesting sexual favors, relations, or dates.
- Threatening a person for rejecting or refusing sexual advances or overtures.
- Spreading rumors about an individual’s personal or sexual life.
- Making jokes or innuendos that have sexual context.
- Nonverbal – Examples include:
- Making derogatory gestures or facial expressions of a sexual nature.
- Stalking or following a person around.
- Staring at an individual’s body or looking them up and down.
- Physical – Examples include:
- Inappropriate contact of an individual’s body or clothing.
- Unwelcomed stroking, patting, hugging, or kissing.
- Impeding or blocking someone’s movement.
- Sexually assaulting (touching someone against his or her will or without his or her consent).
- Visual – Examples include:
- Displaying or sharing pictures, drawings, posters, emails, computer wallpaper or screensavers of sexual context.
- Creating social media posts that are sexually suggestive in nature.
- “Severe or Pervasive” – The conduct of question must either be severe or pervasive in order to meet the legal definition of sexual harassment. It does not have to be both.
- “Affects Working Conditions” or “Creates a Hostile Work Environment” – If you are terminated from your position, demoted, given a poor evaluation, refused a promotion, reassigned to a less desirable status, or another negative action is taken against you because you rejected a sexual advance or other conduct based on your sex, then the harassment has likely had an effect on your working conditions.
Even in cases of an employer who fails to take action that changes the status of your employment or directly results in you losing money (which would likely result if you had been fired, demoted, or had working hours reduced), you may still have a claim for unlawful sexual harassment if the conduct interferes with your work performance or creates an offensive, intimidating, or hostile work environment.
Sexual Assault Defined
The U.S. Department of Justice, Office on Violence Against Women (OVW) has defined sexual assault as “any nonconsensual sexual act proscribed by Federal, tribal, or State law, including when the victim lacks the capacity to consent” (U.S. DOJ, OVW 2018).
While sexual assault is a criminal offense, the law also recognizes sexual harassment as a form of employment discrimination. The EEOC states that “unwelcome sexual advances, request for sexual favors, and other verbal or physical harassment of a sexual nature constitutes sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment” (U.S. EEOC 2018a).
What You Should Do After Being Sexually Assaulted in the Workplace
When deciding what to do after determining your case of being sexually assaulted in the workplace, keep in mind every situation is unique. In most cases, there is no single best course of action. However, reporting the sexual assault or sexual harassment to your employer is an important first step. You’ll then have the option to continue with your company’s processes, file a charge with a state or federal agency, and/or take the matter to court.
Additionally, it’s important to consult an attorney or legal services that specialize in such matters of sexual assault and harassment. Experienced attorneys who help sexual assault victims can help you better understand the nature of your situation, your options, as well as the strengths and weaknesses of your case.
Takeaway Tips for Victims of Sexual Assault in the Workplace
Below we’ve distilled a series of additional tips offered by the Equal Rights Advocates to consider if you feel you’ve experienced sexual assault or sexual harassment at work:
- Say “No” and say it clearly. Tell the person that his or her actions offends you and to stop. If the behavior doesn’t end promptly, communicate to them in writing to stop and keep a copy of this written communication.
- Document what happened. As soon as you experience sexual assault or harassment, start writing it down. Document when and where it occurs, and any possible witnesses. If possible, ask your coworkers to write down what they observe. It is also a good idea to keep your record of what happened at home or in some other safe place other you’re your place of work.
- Report the behavior. Promptly communicate the behavior to your supervisor, your employer’s HR department, or other department or person within your organization who has the power to stop the harassment. If possible, put this in writing.
- Create a record of your own actions. When you report behavior to your employer, do it in writing. This creates a written record of when you complained and what happened in response to it. Make copies of everything you send and receive from your employer.
- Learn your employer’s complaint procedures. Most organizations have established policies and procedures to help deal with and respond to such compliant. Try locating a copy of your employee manual or any written policies surrounding sexual harassment or sexual assault in the workplace. You may be able to use these procedures to resolve the problem entirely. At the very least, it will show that you made an effort to bring awareness to your employer about the issue.
- Leverage your union. If you belong to a union, you may be able to file a formal grievance and get a shop steward or other official to help you navigate the grievance process.
- File a discrimination complaint with a government agency. If you want to file a lawsuit in federal or state court, you must first file a formal charge with the EEOC or your state’s fair employment agency, if applicable.
- Avoid delaying reporting the behavior. Do not delay in reporting the problem to your employer. If it’s evident your employer is unwilling or unable to help resolve the situation, failing to take any action at all could comprise your rights entirely. There are deadlines for filing a charge of discrimination with government agencies, and you cannot bring a lawsuit against your employer unless you have first filed a complaint with the EEOC or agency that enforces your state’s employment discrimination laws. Under federal law, you have 300 days from an act of sexual assault to file a complaint with the EEOC. Some states have as few as 180 days to file a complaint.
Lastly, after you file a formal complaint with the EEOC and/or your state’s fair employment agency, you may also consider filing a lawsuit for sexual assault. The remedies you can seek in such cases may include the following: monetary damages; getting your job back (if you’ve been terminated or transferred to another position); and/or requiring your employer change its procedures to prevent future sexual assault and sexual harassment from occurring. If you are considering filing a lawsuit, you should contact an attorney to assist you.
Author: Apolinksy & Associates, a personal injury law firm that handles sexual assault cases involving unwanted physical touching or physical harm. The firm does not handle matters relating to equal employment opportunities or discrimination on a sexual basis.