In the past 10 years (from 2011 to 2020), an average of more than 12,000 sexual harassment claims were filed with the Equal Employment Opportunity Commission (EEOC), and many charges were filed at the state and local level.
This article looks at sexual harassment claims from a general viewpoint, with information for both employers and employees.
- Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, administered by the Equal Employment Opportunity Commission (EEOC).
- Sexual harassment claims can be filed with federal or state courts if the company has 15 or more employees, or with county, city, or town courts.
- A sexual harassment claim filed with the EEOC begins with a filing a charge with the EEOC, an investigation, and a civil lawsuit.
- If the claimant's claim is upheld, they can receive both compensation and punitive damages.
- Many sexual harassment claims are settled out of court.
What Is Sexual Harassment?
Sexual harassment is a form of sex discrimination that is manifested in unwelcome conduct. It can occur in a variety of circumstances either at work or outside of it.. The definition of sexual harassment is broad, including everything from offensive words, gestures, and unwanted flirting and sexual advances to a hostile, toxic work environment (a work situation that allows sexual harassment to take place).
The victim and the harasser can be a man or a woman, and both can be the same sex. Harassers can be supervisors of the employee, supervisors in another area, co-workers, or others (like vendors, suppliers, or sales representatives). Victims of sexual harassment include the person harassed, but others can also be affected by the offensive conduct.
One common type of sexual harassment is quid pro quo, situations when employment decisions such as promotions, assignments, or keeping the job,are based on willingness to submit to the sexual harassment. Quid pro quo doesn't have to be explicit; it can be implied.
An employer is always legally responsible for harassment by a supervisor that culminates in tangible employment action (a lawsuit).
Sexual Harassment Laws
The federal law used to try sexual harassment cases in businesses is Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, religion, sex, and national origin. This law is enforced by the EEOC.
Many states, counties, cities, and towns have their own laws prohibiting discrimination and agencies responsible for enforcing those laws (called Fair Employment Practice Agencies). Use the EEOC's field office search page to find information on filing a state or local sexual harassment claim.
An employee who wants to file a sexual harassment claim against a business can do that through the EEOC if the business has 15 or more employees. If the business has fewer than 15 employees, the claim can be filed as a civil rights case in a city or other local jurisdiction that has a civil rights statute (law).
Filing a Sexual Harassment Claim
The process of filing a sexual harassment lawsuit under federal law begins with filing a charge with the Equal Employment Opportunity Commission. In general, the charge must be filed within 180 calendar days from the date the discrimination took place, including holidays and weekends. If the deadline falls on a weekend or holiday, the person has until the next business day to file.
A charge may also be filed on the EEOC Public Portal after the person submits an online inquiry and is interviewed.
After the charge is filed, the EEOC investigates the petition to determine if there is reasonable cause to believe that discrimination has occurred and that the parties are unable to resolve the matter.
Finally, after the EEOC investigates, it then issues a Notice of Right to Sue, giving the person permission to file a lawsuit in federal or state court. If the person wants to file a lawsuit in court before the investigation is completed, they may ask the investigating office for permission.
Then, the person must file a lawsuit within 90 days or forfeit the right to move forward with the lawsuit.
Types of Damages in a Sexual Harassment Lawsuit
Damages are the amounts paid to the claimant (person bringing the charge) if the case is settled in their favor. These payments are in two types: compensatory or punitive.
Compensatory damages pay victims for out-of-pocket expenses caused by the discrimination and to compensate them for emotional harm (such as mental anguish, inconvenience, or loss of enjoyment of life). They include:
- Lost pay, bonuses, tips, and commissions
- Lost benefits including health plan benefits, pension, and retirement benefits, paid-time-off benefits, and stock options or profit-sharing
- Medical costs and psychological counseling
Back pay in compensatory damages is awarded if the employee lost their job or was fired because of sexual harassment. Federal law limits back pay to two years before the charge was filed.
Front pay, meanwhile, is compensatory damage payments to the claimant between the time the case is settled and reinstatement. That is the time until the claimant comes back to the work, as required by law, in the same or a similar position.
Front pay is considered an equitable remedy, used to give the victim "make whole" relief, by placing the person as near as possible in the situation they would have had if the wrong hadn't been committed.
Punitive damages are awarded to the claimant for things that can’t be calculated. They are intended as punishment for reckless or malicious actions. For example, if the claimant can prove that a company knew about sexual harassment and did nothing to stop it, that could be intentional. A jury usually decides whether to award punitive damages, based on the evidence presented in the court process.
Federal law limits the amount of compensatory and punitive damages in discrimination cases (including sexual harassment), depending on the size of the employer.
- For employers with 15-100 employees, the limit is $50,000.
- For employers with 101-200 employees, the limit is $100,000.
- For employers with 201-500 employees, the limit is $200,000.
- For employers with more than 500 employees, the limit is $300,000.
Costs Involved in a Sexual Harassment Lawsuit
The biggest financial cost of a sexual harassment case for both parties is legal fees. Most attorneys will agree to work on a contingency, meaning that they won’t get paid unless their client wins. Others will ask for a retainer amount before starting the case.
Getting an attorney to accept a sexual harassment case on contingency is often a good indication that the case has merit.
The biggest cost for an employer is also legal fees, but many large companies have some form of liability insurance that will pay part of the settlement fees. It’s difficult to get a picture of what companies pay out to settle sexual harassment claims because many companies don’t want these settlement costs known.
Settling Out of Court
The overwhelming majority of sexual harassment cases are settled out of court, for a variety of reasons:
- Both parties want to avoid the costs and long timespan needed to settle in court.
- The outcome of a court case is impossible to predict. A settlement provides a “bird-in-the-hand” of a guaranteed amount.
- Victims of sexual harassment want to avoid the public humiliation of being asked about their sexual history.
- Companies don’t want the publicity of a public trial.
Frequently Asked Questions (FAQs)
Can mediation be used to settle a sexual harassment claim?
Mediation is a process that allows the two sides to come together with the help of a qualified mediator to work out their own solution to the issue. Mediation focuses more on addressing inequities and behaviors and less on monetary values. Advantages of mediation include:
- Preserving confidentiality for both parties, since mediation is a private process
- A less costly process than the cost of a lawsuit
- Allowing the victim to air frustrations and the accused to clarify their side of the story
- Allowing the employee to be reinstated or promoted
Where can I find a lawyer for a sexual harassment lawsuit?
Whether you are the claimant (plaintiff) or responder (defendant) in a sexual harassment lawsuit, you'll need to find a licensed attorney who specializes in this type of claim. Some sources of lists include:
- Avvo and other general attorney search sites
- The American Bar Association's Legal Services Division, which includes access to pro bono and low-cost legal services
- The National Employment Lawyers Association
- The Workplace Fairness Attorney Directory
What should an employee do if they feel they are being sexually harassed?
The first thing the person should do is to write down everything that happened, where. and when. Include specific words, including what was said at the time. Include information on others who may have seen what happened.
Consider trying to resolve the problem internally. If the employer has a union, that would be a good place to get help. If there's a process for making a written claim, the person could use that process. Keep records of the claim and any responses including emails.