January 25, 2021
Sexual harassment in the workplace is a serious issue throughout the country and is actionable at federal, state, and local levels depending on the jurisdiction and size of the company, among other factors. It negatively impacts the victim of the harassment and can obstruct the daily operations of a business. If you have been the victim of sexual harassment or retaliation for reporting harassment by a supervisor or another employee in Virginia or Washington D.C., an experienced employment law attorney can help you to determine your best course of action.
Sexual harassment is considered a form of discrimination and is prohibited under Title VII of the Civil Rights Act. This federal law applies to government employers at the federal, state, and local levels and to private-sector employers who have fifteen or more employees.
For private-sector employees working at a business that employs less than 15 people, state and local laws offer protection against sexual harassment. In Virginia, the Human Rights Act prohibits any kind of discrimination and harassment based on sex. This includes employment practices that are discriminatory and based on pregnancy and childbirth, gender identification, and sexual orientation. Victims of sexual harassment can file a complaint with the Virginia Division of Human Rights, where their place of employment has between six and fourteen employees. Additionally, Fairfax County prohibits sexual harassment, and a complaint can be filed for those employed at a business with four or more employees.
In Washington D.C., the Human Rights Act makes it unlawful for an employer or employee to create a hostile work environment based on a protected characteristic, including sex. The District also provides more specific rules, such as the requirement that employers of tipped workers complete sexual harassment training. Additionally, D.C. specifies that an employee can file a claim even if he or she was not a direct victim of the harassment, as anyone can be affected by another person’s offensive conduct.
Sexual harassment does not have to be purely sexual in nature. Because it is a form of discrimination based on sex, offensive remarks about a particular sex in general could be offensive to a person of that sex.
The law recognizes two types of sexual harassment:
1. Quid Pro Quo Sexual Harassment – this type of harassment is specifically sexual in nature. Quid pro quo harassment occurs when a person in a position of power, such as a supervisor or manager, or another employee offers something beneficial to the employee for sexual favors. A common example of quid pro quo harassment includes a promotion being dependent on the employee performing sexual acts on a supervisor. Another common instance of this harassment is found where a manager offers to refrain from terminating an employee if the employee agrees to engage in sexual conduct with the manager.
2. Hostile Work Environment Sexual Harassment – this type of harassment can be sexual in nature but isn’t always so. This is seen where the conduct of others in the workplace creates an offensive environment so abusive that the employee cannot effectively do his or her job. An example of hostile work environment harassment includes a female employee finding it difficult to do her job because of offensive comments about women made by other employees.
While most people picture a female victim in instances of sexual harassment, it is important to remember that any person of any sex can be a victim. Additionally, sexual harassment is not always committed by a person of the opposite sex and can be committed by someone of the same sex.
If you have been the victim of sexual harassment, the first thing you should do is report the harassment or file a complaint with your company’s Human resources department. Most workplaces are required to have the HR department investigate any claims of harassment. While many companies take sexual harassment claims seriously as they should, some issues of harassment may go unresolved. Upon a lack of resolution, you should submit a complaint to your state’s agency that investigates claims of sexual harassment or to the Equal Employment Opportunity Commission (EEOC). If you are unsure about the process or what to include within your complaint, an employment law attorney can file the complaint on your behalf.
If your HR department does not properly investigate your sexual harassment complaint and you choose to file one with the EEOC, you must do so within 180 days of the alleged incident. If you file later than 180 days, the EEOC may elect not to investigate your claim. In Virginia, the 180-day limit may be extended to 300 days due to a work-sharing agreement between the state and the EEOC. Once the agency receives your complaint, it will take one of two courses of action. If the EEOC elects to investigate your claim, it will interview other employees and any other witnesses and review paperwork as well as any security footage that might provide evidence of the harassment. If the agency finds that the employer violated discrimination laws, then it will attempt to reach a settlement with the employer. If no settlement is reached, then the Department of Justice will determine if a lawsuit should be filed. The EEOC may also choose to issue a Notice of Right to Sue if it elects not to file a discrimination lawsuit or if it does not find a violation of the law. The Notice of Right to Sue is required to file an employment discrimination lawsuit in federal district court.
Importantly, in DC, your sexual harassment claim must be filed within one year of the date you believe the discrimination occurred if your claim is against a private employer. In Virginia, you must file a claim within 180 days to preserve your claim under state law and 300 days to preserve your claim under federal law if your claim is against a private employer. If your claim is against a federal employer, you only have 45 days to file.
As an employee, you have the right to be free from discrimination based on your sex, which includes sexual harassment. If you have been offered a work benefit in exchange for sexual favors or subjected to an abusive environment as a result of offensive conduct, contact the employment law attorneys of McClanahan Powers, PLLC by calling 703-520-1326 or visiting our website to schedule your consultation.