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Overview of Title VII Law Relating to Sexual Harassment Sexual harassment is a form of employment discrimination. Employment discrimination became illegal through the federal law entitled Title VII of the Civil Rights Act of 1964. Title VII prohibited discrimination on the basis of race, color, religion, national origin, and sex. In 1991, Title VII was amended to allow for a jury trial and compensatory and punitive damages. In addition, Title VII allowed for recovery for sexual harassment. To qualify for coverage under Title VII, a company must employ at least 15 employees over the previous calendar year. The damages a plaintiff may be entitled to include back pay (lost wages), compensatory damages (emotional distress type damages) , punitive damages and attorneys fees. Compensatory and punitive damages are capped between $50,000 - $300,000, depending upon the size of the company. For companies which employ more than 501 people, the maximum recoverable against the company is $300,000. There are two types of sexual harassment, hostile work environment and tangible employment action harassment. Hostile work environment sexual harassment is defined as conduct that is either severe or pervasive, is because of sex, and alters the conditions of employment. In order to arise to the level necessary to be illegal sexual harassment, the conduct must be fairly egregious or it must occur over an extended period of time. Each case is evaluated based on the specific facts of the individual's case, and the facts must be fully developed to determine whether the conduct is sexual harassment. In addition, the conduct complained of must be both subjectively and objectively offensive. In other words, the client must have actually have found the conduct offensive and unwelcome, and reasonably minded individuals similarly situated would also have found the conduct offensive. Often touching is involved. Touching is typically considered objectively offensive. The company can be held vicariously liable for hostile work environment harassment. The individual harasser is not held responsible under Title VII. In a hostile work environment claim, the company has the opportunity to defend the case with an "affirmative defense". An affirmative defense, if proven, defeats the plaintiff's valid claim. In order to defeat a claim of sexual harassment, the defendant company would have to prove that the company took reasonable steps to prevent harassment from occurring, and that the client either unreasonably failed to avail herself of the attempts, or she availed herself and the company took prompt remedial action. It has been determined that if the company has a written policy for sexual harassment in place, they have created a presumption that they have taken reasonable steps to prevent harassment from occurring. At that point, it is the client's responsibility to follow the written guidelines of the harassment policy and report the harassment to the appropriate individual. If the client unreasonably fails to do so, the defendant is able to defeat the client's claim. If the client followed the procedure, and the company took prompt remedial action, and the situation no longer exists, the company may be able to defeat any claim for sexual harassment. If the company retaliates against the client, the client may have an additional claim for retaliation under Title VII. If the harasser has taken a tangible action against the employee, there may be strict liability against the company. A tangible employment action is one which changes the benefits, duties, responsibilities or salary of the employee. If a supervisor, through the power and control vested in him by the company, takes an adverse employment action against the client, the company can only defend by proving either that the harassment did not occur, or did not rise to the requisite level necessary. Companies defend sexual harassment claims in a myriad of ways. Defenses include: claiming that the conduct was welcomed by the client, claiming that the sexual harassment which is alleged did not occur or claiming that the harassment was neither severe or pervasive. The most prevalent defense is that the company did not know about the sexual harassment. Contact Amanda Farahany, an Atlanta Sexual Harassment Attorney, today for more information. Resources Where Human Resources and Employment Law Intersect |
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