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ARTICLES:

SEXUAL HARASSMENT

Your protections against sexual harassment, and your remedies, are different depending on whether the employer is big enough to be covered by the Discrimination laws (that means 6 employees under Missouri’s laws and 15 employees under the Federal laws).

Please also see my article called Hostile Work Environment. That article also covers some issues regarding sexual harassment.

Please call a lawyer without further delay. Lawyers will welcome your call about a possible sexual harassment case. You don’t want to make a mistake early in your developing case and ruin your chance to get any justice. The law of sexual harassment is very complicated. Consider letting a lawyer help you navigate the system.

(Lawyers will welcome your call. There may be much lawyers can do to help you)

Description of the major types of cases that
arise from Sexual Harassment situations:

Quid Pro Quo (means “One Thing for Another Thing”)

The “Quid Pro Quo” form of discrimination occurs when your employer says that you can obtain job benefits, pay raises, positions, promotions, etc, in exchange for your willingness to tolerate sex harassment or for your sexual favors.

Quid Pro Quo also occurs when you are threatened with the loss of a job-related benefit or pay or position or promotion due to your refusal to tolerate sex harassment or your refusal of sexual favors. If this happens to you, please consider calling a lawyer right away.

If you do not want to call a lawyer to help you, then you could make a proper internal Complaint to Human Resources (or the employer’s designated person) and/or make a charge of Discrimination with the EEOC or MCHR.

Try not to quit your job without getting legal advice first. See my article on Constructive Discharge for more info about why.

Hostile Environment – Severe Type – when a lot of offensive events occur

The Hostile Environment form of discrimination occurs when you are being subjected to ongoing unwelcome and offensive sex-related conduct or comments in the workplace.

The courts usually say that a “few isolated minor incidents” do not give you the right to sue anyone, but a few isolated incidents give you the right to make a proper Complaint to Human Resources (or to the employer’s designated person) and require that the employer act reasonably to fix the problem.

If the unwelcome and offensive sex-related conduct continues, you can sue the employer after making a charge of Discrimination with the EEOC or MCHR. Try not to quit your job without getting legal advice first. See my article on Constructive Discharge for more info about why.

Gender Discrimination – When a relative few offensive events occur, not enough for a “Hostile Environment” case

Lawyers do what they can with the facts and the law. If the offensive sexual content of the work environment is not enough to give you a viable hostile environment (severe type) or quid pro quo claim, you can still use the evidence to support a claim for “Gender Discrimination.”

The offensive sexual content is important evidence of “Gender Discrimination” in the workplace. You should still make a proper Complaint to Human Resources (or to the employer’s designated person). You will have to make a charge of Discrimination before being able to sue.

Retaliation for Complaining or Refusing

Employers might retaliate against you in some manner if you complain about sexually offensive conduct in the workplace, or if you refuse to tolerate sexually offensive conduct. Some employers will label you as a legal threat.

The employer might start to mistreat you in subtle and not-so-subtle ways. For more information about what might happen and for some more tips and traps, please see my articles about Retaliation and Constructive Discharge (feeling like you are being forced to quit) and Wrongful Termination.

If you are the victim of Retaliation for having complained of sexual harassment or having refused to tolerate offensive sexual conduct, please call a lawyer right away and consider making a charge of Discrimination (because “retaliation” is a form of “discrimination”).

Your rights differ according to whether the
employer is covered by the Discrimination Laws

FIRST – If the employer is big enough to be covered by the Discrimination laws –

The Discrimination Laws require at least 6 employees (Missouri’s special laws) and 15+ employees (the general Federal EEOC law).

The employer must provide you with a work environment free of offensive sex-related conduct (sexual comments, sexual jokes, suggestiveness, innuendo, sexual conversations, photos, magazines, etc).

At the earliest sign of such offensive conduct, you should usually consider making a proper and effective Complaint about the conduct.

The employer then must stop the conduct from occurring. If the conduct continues, your rights get stronger, and you should consider filing a charge of Discrimination with the EEOC or MCHR. If you do not make a complaint, your legal position is much weaker. Lawyers can help you navigate the system and protect your rights.

If a person at work touches you offensively, such as sexual grabbing, etc., then he has committed an “assault and battery” on you regardless of the number of employees who work there.

You have the full range of damages available against the person who touched you, such as emotional distress and even punitive damages.

Sometimes you can make the Company pay the damages, but not always. Sometimes the only person to sue is the person who touched you, especially if it was a co-worker. These “tort” rights are in addition to the rights you have under the Discrimination laws.

The employer must stop the touching from occurring. That’s why you will probably want to make a proper Complaint, to let the employer know what happened so the employer can prevent future problems. If the employer tolerates or encourages offensive touching, please call a lawyer right away. If a member of management touches you, please call a lawyer right away.

The employer, or its managers, cannot demand (or suggest) sexual favors in exchange for a job or promotion or better working conditions or pay or any other terms and conditions or benefits of employment.

This is a form of discrimination. It’s all case by case, and you might not need to make an internal complaint first in order for your rights to be strong, but you will need to file a charge of Discrimination. Call a lawyer right away, please.

The employer cannot commit Retaliation against you for complaining of the discrimination or harassment, and cannot permit your co-workers to retaliate against you. Call a lawyer right away, please.

TRAPS

Try not to quit your job without getting legal advice first. The employer’s lawyer will use the technicalities of the law of Constructive Discharge (quitting your job due to mistreatment) to try to destroy your case.

Make a proper Complaint when required, or else you could destroy your legal rights.

SECOND – If the employer is NOT big enough to be covered by the Discrimination Laws (fewer than 6 employees), then your rights are weaker

Assault and Battery

If a person at work touches you offensively, such as sexual grabbing, etc., then he has committed an assault and battery on you regardless of the number of employees who work there. Everyone is covered by the Assault and Battery doctrines, whether or not your employer is big enough to be covered by the Discrimination laws.

In an Assualt and Battery case, you have the full range of “tort” damages available against the person who touched you, such as emotional distress and even punitive damages. Sometimes you can make the Company pay the damages, but not always.

Other tort theories

Lawyers look for the possibility of making a case under other common law tort theories, beyond Assualt and Battery. The most common such theory is “False Imprisonment” (such as backing you up into a storeroom or office and then not letting you leave).

Other theories are much more rarely present to any extent. For example, you might think as a layman that “Intentional Infliction of Emotional Distress” occurred. But the legal technicalities of that theory are usually insurmountable. Call a lawyer and talk about it.

Please call a lawyer at the earliest opportunity if you are the victim of harassment of a sexual nature.

Things you could consider doing if you are feeling sexually harassed, or if you are offended by sexual conduct in the workplace

  • It’s hard to over-emphasize how important it could be for you to get legal advice at the earliest opportunity.
  • The circumstances of your unique case will dictate the best strategy. But most of the time, most people should probably consider following the steps outlined below.
  • If sexual-related conduct or comments are occurring, and if you find it offensive, then you have legal rights. That doesn’t mean you have a good lawsuit yet, but you have legal rights.
  • When co-workers are committing the offensive conduct, then most of the time you will have to make a Complaint to Human Resources, or to some other designated person, and give the employer a reasonable chance to fix the problem.

    If the employer fails to fix the problem, you should probably consider filing a charge of Discrimination with the EEOC or MCHR. That’s the procedure most people should consider following most of the time, when unwelcome and offensive sex-related conduct is occurring in the workplace, especially if co-workers are committing the bad conduct.

  • When managers or supervisors are committing the offensive conduct, please consider calling a lawyer right away. It all depends on the exact facts, but your rights tend to be stronger when supervisors or managers are committing offensive sex conduct.

    The waters are murky, legally speaking, but even when supervisors are committing the offensive sex conduct (and the conduct isn’t too severe by itself) the courts still like to see that you made a Complaint to Human Resources or a designated person and gave the employer a chance to fix the problem.

    If the conduct continues after you make a proper complaint, your legal rights become much stronger. If the conduct continues, consider filing a charge of Discrimination with the EEOC or MCHR.

  • If a supervisor or manager is making the offensive comments, and if he is also the “designated person” to whom you are supposed to complain, then you should complain over his head to the next higher level of management. Call a lawyer, please.
  • If a high-level manager at your company is committing any form of offensive sexual conduct toward you, please consider calling a lawyer right away. These are very delicate situations, and a lawyer might be able to help you navigate the system without doing harm to your developing case.
  • If someone is sexually touching you without your consent, then you have additional rights. If a co-worker or manager touches you in an offensive manner without your consent he has committed a type of “assault and battery.” You can sue him and also prosecute him criminally. You should consider filing a police report right away if you are offensively touched. You should also consider calling a lawyer and consider filing a charge of Discrimination with the EEOC or MCHR.
  • On occasion employers will say that you can have a job or a promotion or a raise or a special benefit or assignment if you have a relationship or tolerate harassment, etc.

    If that happens to you, you should call a lawyer right away and file a charge of Discrimination with the EEOC or MCHR.

    If you submit to the employer’s desires and engage in sexual conduct with him, you will weaken your potential case. Your case becomes weaker because the employer will try to argue that you merely had a consensual relationship and that your lawsuit is just a form of revenge over being jilted, or that you are a golddigger who lures men into compromising positions just to extort money from them to keep you quiet.

  • If you are the victim of Retaliation for having complained of sexual harassment or having refused to tolerate offensive sexual conduct, please call a lawyer right away and consider making a charge of Discrimination..
  • See my Complaints article for some tips and traps about making complaints.

See my article on Making Complaints. See also my Discrimination article for info about making EEOC and MCHR discrimination charges. If you are thinking of quitting, see my Constructive Discharge article before you quit (you might destroy or severely weaken your case). Check out my Links page (for links to the EEOC and many other sources of info). The EEOC’s website contains a lot of detailed information. Some of the other Employment Law Links go into lots of detail as well.


***** END OF ARTICLE *****

Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

Missouri Bar Website (To view the directory of lawyers).

Phil Willoughby, Attorney
Licensed in Missouri and Kansas

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