Q: I WORK for a company where interaction with fellow employees and customers is a big part of my job. Late last year, I began receiving sexually inappropriate text messages and emails from a manager overseeing another department. I have told this person to stop sending me these kinds of messages but it continues. I reported the matter to our human resources director. Instead of investigating the matter, management has begun to closely scrutinize my work and I have been getting severe reprimands for the most minor of lapses. I do not want to jeopardize my job but I also do not want this manager’s horrible conduct to continue. What should I do to protect myself or is it too late?
A. It is never too late to take steps to protect yourself and to ask for help. More importantly, the time to do the right thing is always now when something can still be done. You did the right thing by unequivocally telling the harasser to stop the conduct. Sexual harassment is harassment only if the conduct is unwelcome. To convey that the conduct is unwelcome, one must expressly say “No” or “Stop.” (If the sexual attention is welcomed or consented to, it would not be harassment.)
There are two types of sexual harassment. The first is quid pro quo harassment. The second type is harassment created by a “hostile environment.” Quid pro quo harassment occurs when “submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting” that individual. A classic example is the boss who threatens to fire an employee if the employee refuses to have sex with him (or her).
A hostile environment claim may arise where unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment, even if it does not lead to tangible or economic job consequences. This is the type of harassment in the above inquiry. Even if there is no threat of termination, the manager’s inappropriate conduct either creates an offensive working environment or affects the co-worker’s job performance or both.
If the employee’s efforts to curb the harassment by reporting the perpetrator to management resulted in adverse employment conditions, such as termination or suspension, management’s conduct may be retaliation. Conduct amounts to retaliation if all of the following are present:
1) The employee engaged inprotected activity. In this case, reporting the harassment is a protected activity.
2) The employer knew or believed that the employee engaged in such protected activity. Since the employee reported the misconduct to the employer, then the employer knows. If the retaliation occurs shortly after the employee’s complaint, then the timing may suggest that the employer’s true motive was to retaliate against the employee.
3) The employee suffered an adverse employment action. Even if the employee has not been fired or demoted, courts have generally accepted that formal discipline, as the employee above has experienced, may be deemed d an adverse employment action.
4) The employee’s protected activity caused the employer to take adverse action. Causation is often the hardest to prove. Fortunately, causation can be proven either by direct evidence or by an inference. The facts will vary from case to case.
As we have seen in our previous articles, sexual harassment and subsequent retaliation for reporting the harassment can subject employers to very expensive liabilities. We recall the case of Ani Chopourian, a doctor’s assistant, who complained about doctors’ sexual harassment of her and other employees and who was then terminated in retaliation for her complaints. Chopourian was awarded a staggering $167 million for her claims, the bulk of which were punitive damages.
Or recall the case of William Taylor, a former Burbank deputy police chief, who complained about racial and sexual discrimination in the department, and who was then terminated after his complaints. Taylor was awarded $1.29 million by a Los Angeles jury on his claim against his employer, the City of Burbank, for retaliation.
Of course, not every case of sexual harassment and retaliation will result in multi-million verdicts. But the size of the verdicts shows how seriously these claims are taken, by the courts and the juries. More importantly, it shows that when this unlawful conduct occurs, all hope is not lost, and that legal remedies are available to protect the aggrieved employee.