What is considered sexual harassment?

Unfortunately, unlawful sexual harassment happens in workplaces across the country. It occurs at all levels of the workplace, from the factory floor to the executive suites. For victims, sexual harassment transforms the workplace into an abusive and even sickening environment. Smith Mullin is dedicated to using all the legal and political means at our disposal to eradicate this plague.

What is sexual harassment? Put simply, it is the unwelcome touching, speech or other unwanted conduct directed at a person because of her or his sex or sexual orientation. For example, men harass women in the workplace in various ways: by making crude sexual comments to them, by making unwanted comments about their physical appearance and sexuality, by displaying pornography in their vicinity, and by touching them in unwanted, unwelcome ways.

Closely related to sexual harassment is quid pro quo sexual discrimination. Such unlawful conduct occurs when a supervisor or executive demands sexual favors in exchange for hiring, promotions, and/or salary increases.

What can an employee do in the workplace about sexual harassment?

First and foremost, victims of sexual harassment should speak to and retain an employment lawyer. They should do this before complaining to their superiors or going to their employers’ human resources or legal departments. They should go to a lawyer before filing a discrimination charge with any state or federal agency such as the Equal Employment Opportunity Commission or a related state agency.
The reason it is essential for victims of sexual harassment and discrimination to see an employment lawyer before undertaking any of the above actions is because the federal and state laws governing sexual harassment and discrimination are complex and have many pitfalls created over the years by judges and agencies who are more concerned with protecting companies than protecting women and other victims of sexual harassment. Moreover, corporate HR and legal departments exist primarily to serve the company and protect executives and managers from legal and financial exposure.
Sadly, many corporations respond to complaints of sexual harassment or discrimination by retaliating against the victims. Retaliation is forbidden by the same federal and state laws that forbid sexual harassment, but yet, retaliation is common and often takes subtle and sophisticated forms. For example, a woman who complains of sexual harassment may find that she is suddenly subjected to unfair comments in her performance reviews or that she is given overwhelming work assignments at which she is bound to fail. Later, a retaliating company will use the performance review or failed performance as evidence justifying a termination of employment.

For all of these reasons, it is essential that an employee has an experienced employment lawyer at her side when and if she complains of sexual harassment.

What can an employment lawyer do for a victim of sexual harassment?

An employment lawyer can guide a victim of sexual harassment through the process of complaining to her employer. The lawyer can draft the complaint so it avoids legal pitfalls and can protect the employee through the company’s investigations and interviews.

An employment lawyer can engage the company in a negotiation process that leads to the termination of the harasser and protection of the victim. If the victim of harassment wants to leave the company, an employment lawyer can negotiate for adequate severance pay and good references.

If a negotiated settlement cannot be reached, an employment lawyer can file a lawsuit. In New Jersey, Smith Mullin’s preference is to file in state superior court under the New Jersey Law Against Discrimination (“LAD”). When Smith Mullin practices in New York City, we typically file in federal or state court under the New York City Human Rights Law and Title VII of the 1964 Civil Rights Act. New Jersey LAD requires that all claims be filed in court within 2 years of the last act of sexual harassment or discrimination. The New York City Law requires that an action be filed in court within 3 years of the unlawful conduct. Title VII requires that a discrimination charge be filed first, before going to court, with the EEOC within 180 days of the discriminatory act.

Under the above laws, an employee is entitled to a jury trial and the jury is entitled to award damages for lost wages, emotional distress and to award punitive damages in exceptional circumstances to punish the employer. Smith Mullin is proud of the success they have achieved in trials on behalf of the victims of discrimination. Often the mere filing of a public lawsuit in court triggers a desire by employers to settle with our clients. Smith Mullin is proud of the pre-trial settlements they have achieved for the victims of sexual harassment and sexual discrimination.
Unfortunately, many employers require their employees to give up their right to an open and public trial and force them into secret arbitrations. Smith Mullin is actively fighting this effort to force sexual harassment victims into silence. Currently through our efforts and the efforts of many others, a bipartisan bill is pending in Congress barring employers from forcing women and other employees into the secret company courts through mandatory arbitration.

Conclusion

Ultimately, sexual harassment of women is a problem of male behavior in the workplace. Men must scrutinize their own behavior and stand up against men who demean women in the workplace or elsewhere. Corporations must hire and promote women into positions of authority in the workplace and include them in the executive suites and boardrooms. And when faced with complaints of sexual harassment, companies must end the practice of minimizing or ignoring such claims, and must cease retaliation against victims.

Finally, the silencing of women must end. Secret, forced arbitration must be replaced by open, public trials. When women settle sexual harassment cases, they must not be forced to sign non-disclosure agreements barring them from telling co-workers about harassers in the workplace.