Frequently Asked Questions
Who can file a sexual harassment lawsuit?
Anyone who is sexually harassed, regardless of gender, job title, tenure with the company, etc. Most sexual harassment cases are brought by women, but a small percentage are brought by men who are harassed by a female or gay male supervisor or coworker. Sexual harassment cases can be brought by hourly, salaried, part-time and full-time employees, as well as temps and even independent contractors in some situations. The harasser can be male or female, and can be a co-worker, supervisor, or, in some instances, even someone who doesn’t work for the company (such as a customer or outside vendor). In some situations, the employer may argue that it is not subject to Ohio or federal law, for instance because it does not have enough employees to be covered, but even if some laws do not apply there is usually some legal claim available.
What is legally considered sexual harassment?
Sexual harassment is defined by the Equal Employment Opportunity Commission (EEOC) as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. The law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious; in order to constitute sexual harassment, the conduct must be “severe” and/or “pervasive.” Some examples are:
- Touching an employee's clothing, hair, or body (particularly intimate parts of the body)
- Hugging, kissing, standing uncomfortably close to, brushing up against or constantly hanging around an employee
- Making sexual gestures or facial expressions
- Unwanted pressure for dates
- Unwanted pressure for sexual favors
- Unwanted deliberate touching, leaning over, cornering, or pinching
- Unwanted sexual looks or gestures
- Unwanted text messages, emails, phone calls, pictures, or materials of a sexual nature
- Unwanted sexual teasing, jokes, remarks, comments or questions of a sexual nature
- Personal questions about a person’s sex life, including questions about sexual fantasies or preferences
- Sexual innuendos or stories
- Whistling, cat calls and the like
- Comments about a person's clothing, anatomy, or looks
- Telling lies or spreading rumors of a sexual nature
These are examples of "hostile work environment" sexual harassment. "Quid Pro Quo" Sexual Harassment, explained below, is another type of sexual harassment which is illegal.
What is Quid Pro Quo Sexual Harassment?
Quid pro quo sexual harassment is when a supervisor or someone in a position of authority requests sex, sexual favors or a sexual relationship in exchange for favors, such as hiring, promotions or raises, or in order to avoid some “adverse employment action” (such as declining to hire, termination, demotion, poor performance reviews, preclusion from advancement, or a decrease in pay). “Quid pro quo” translates from Latin to English as “this for that.” The basic idea is that of an exchange. I do something for you, and you, in return, do something for me. You may have heard the saying, “You scratch my back and I’ll scratch yours.” This conveys the same underlying message, and it is what is at the heart of quid pro quo sexual harassment claims.
To prove quid pro quo sexual harassment, the victim must establish that the harasser made unwanted sexual advances or demanded sexual favors as a condition for receiving employment or some employment benefit and/or for avoiding some adverse employment action.
What should you do if you are being sexually harassed at work?
Being sexually harassed at work is one of the most unenviable situations to be in. Women often struggle over whether to try to simply ignore the harassment or complain and risk becoming persona non grata at work. Call an attorney as soon as it happens. Depending on the nature and the extent of the sexual harassment, an attorney will likely tell you that it is too soon to take legal action and that you must report it - if you wish to - and give your employer the chance to take corrective action. However, I routinely field these phone calls and give guidance specific to the employee’s situation and instructions to contact me again at a later point depending on what happens, so feel free to call me on my direct line at 513-621-2500. It depends partly on who is sexually harassing you and whether they qualify as a “supervisor” as that term is defined in the law.
As a general proposition, you should report the sexual harassment in writing (and in accordance with your employee handbook) and give your company the chance to investigate and address the harassment. Sometimes this results in the sexual harasser getting fired and the employee continuing on with no further issues. Other times, unfortunately, sexual harassment victims are punished for complaining, which is referred to in legal terms as “retaliation.” The reality is that you generally have to complain in order to be able to pursue a lawsuit. Feel free to call me on my direct line if you are struggling with this scenario, as some guidance from a sexual harassment attorney will go a long way.
Additional tips if you are facing sexual harassment at work:
- Document, document, document. This is so much easier with the advent of smartphones. If you are receiving inappropriate text messages, pictures or emails, keep them. If you have voicemails, save them. Do not delete or get rid of any evidence. I have represented women who deleted evidence such as text messages because they didn’t want their spouses to see them. While this is certainly understandable, it can be very detrimental in a sexual harassment case.
- More on documenting. In most sexual harassment cases (this goes for other types of employment cases too), you will not actually testify about the harassment under oath until one to two years after it happened, or even longer in some cases. Memories fade over time, and any difference in your story can be attacked and exploited by a savvy defense attorney. For this reason, I recommend keeping notes roughly in the form of a timeline for things like phone calls or personal encounters. For instance, when something happens or someone makes a highly inappropriate statement to you, you would write down the who, what, when, where. Then you can refer back to it later.
- It is legal to record in many states. In Ohio and in other “one-party consent” states, you are allowed to record a conversation if you are a party to the conversation. You don’t have to tell the other person you are recording, and recordings can often be used in court. Many of my sexual harassment cases (and other employment law cases) involve recordings, some of which have had a significant impact.
- If you complain in writing, DO NOT leave out examples of the harassment because they are awkward, embarrassing or traumatic. In one of the saddest cases I have handled, my client made a written statement about the harassment she suffered but only wrote about inappropriate verbal advances the harasser made. In truth, he also groped her on multiple occasions and tried to force himself on her, but she felt uncomfortable writing about that and talking about it with the male manager who took the report, so she left it out. When we filed a lawsuit, however, the company used the statement against her. “When she reported the harassment she said it was just a few inappropriate statements, then she hires an attorney and changes her story to make it sound more serious,” they argued. One approach is to say in your statement that examples of the sexual harassment include X, Y and Z.
- Keep a copy of any written complaint you make. In some cases, the company throws out the written complaint and denies that one was ever made. If you make the complaint by email (and keep a copy of the email), that is a good way to do it. At the very least, if you make a hand-written complaint, take a picture of it before turning it in.
- Beware of dirty tricks companies may attempt if they get an indication you are about to make a complaint. One of my clients emailed an HR manager to ask for a copy of the employee handbook (so that she could follow the company’s instructions for making a discrimination complaint), and, within hours, she was called into a meeting with HR, told her work performance was unsatisfactory, and put on a bogus “performance improvement plan.” Then, when we filed a lawsuit, the company argued, “she only complained after being put on a performance improvement plan!” Note: justice was served and the company at issue paid heftily for violating her civil rights.
I dated a coworker but broke it off. if that coworker sexually harasses me, can I still bring a claim for sexual harassment?
Yes, Many women (and sometimes men) are sexually harassed and retaliated against after breaking off a relationship with a boss, supervisor, or coworker. A sexual harassment claim is based on unwelcome conduct. If you have made it clear to the coworker that you have no further romantic interest in him or her, then any ongoing unwelcome sexual attention that reaches the level of severe or pervasive could be the basis for a sexual harassment claim. You must proactively make it very clear to your coworker that the attention is unwelcome. If you do, your prior relationship will not excuse his or her harassment.
My boss watches porn on his work computer. is this sexual harassment?
It depends. Is your boss's computer screen visible to anyone who passes? Does your boss tell you about the porn he is watching? Draw your attention to the porn he is watching? Does your boss continue to download pornography after being told that others find it offensive? If so, this could be sexual harassment. Just because the activity is not specifically directed at you does not mean that it is not sexual harassment.
a regular customer of my employer sexually harasses me every time i see him. is this sexual harassment?
Yes - under Ohio and federal law, "nonemployee sexual harassment" can be the basis for a sexual harassment claim. This issue arises frequently with servers, bartenders, and other food service sector employees who are sexually harassed by drunken customers. Women who work in sales are also frequent sexually harassed by the company's customers. Ohio Adm. Code 4112-5-01 provides: “An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action." The guidelines of the Equal Employment Opportunity Commission (EEOC) contain a similar provision, found in Section 1604.11(e), Title 29, C.F.R. Before you can file a sexual harassment lawsuit against your employer for nonemployee harassment, you must report the harassment and give the company the opportunity to correct the problem (for example, by kicking out the customer). Only if your employer fails to correct the problem will you have a valid sexual harassment claim.
What if my employer retaliates against me for complaining about sexual harassment?
Then we hold them accountable. I have represented women (and, on occasion, men) who have been fired, demoted, given an unjustified poor performance review, transferred to a less desireable location or assignment, shunned, excluded from meetings within their department, defamed, subjected to further harassment, and otherwise punished for reporting sexual harassment (the same goes for other types of discrimination/harassment, including racial, religious, national origin and disability). Sometimes the manager to whom an employee complains tells them they can’t do anything unless they make a complaint in writing. None of this is legal - just as you can file a lawsuit against your employer if you are a victim of sexual harassment, you can also sue for retaliation. This is true under Ohio law, Kentucky law, Indiana law and the law of most other states. Additionally, federal law - specifically, Title VII of the Civil Rights Act of 1964 - protects employees everywhere in the United States. If you face retaliation, call an employment attorney right away.
Should I quit my job if I am being sexually harassed?
Short Answer - definitely not before consulting a sexual harassment attorney. There are two main considerations. First, you need to decide if your goal is to ultimately keep this job. Second, you need to decide if you want to file a sexual harassment lawsuit. Really, you need to speak with an attorney before making any decisions because 1) if you want to keep the job, you may not want to get a lawyer involved (but you should still make sure to properly document the issues, etc.), in case you are fired or otherwise retaliated against and you are forced to take legal action, and 2) if you are going to file a lawsuit, quitting the job will likely weaken the strength of the case. If the harassment is so extreme that it is unbearable, you may be justified in quitting and it may count the same as having been fired. This is called “constructive discharge.” However, you should NOT assume that you can quit with no effect on your potential case without first consulting an attorney. Call a sexual harassment attorney.
If you believe you have been sexually harassed or retaliated against in the workplace, an experienced employment attorney can explain your rights, give you advice based on your particular situation and explain the pros and cons of taking legal action. We help you to understand the big picture and make the choice that is right for you.