By Lawrence P. Schaefer |
Few areas of employment law are as important or as misunderstood as the legal protections for individuals who have been subject to sexual harassment. Specific and detailed legal protection exist at the federal (Title VII of the 1964 Civil Rights Act), state (the Minnesota Human rights Act), and local (both Minneapolis and Saint Paul have local ordinances providing protections) levels, and consulting with an experienced employment lawyer is often critical to enforcing these rights and understanding your sexual harassment questions.
Here are some of the most frequent sexual harassment questions I answer from prospective clients in this area.
1. When do I have to bring a claim if I’ve been subject to sexual harassment?
Under federal law you have only 300 days, starting from the time of each act of alleged harassment, before you are required to initiate litigation, which is satisfied by filing an agency charge with the Equal Employment Opportunity Commission. Under state law, you have one year before litigation has to commence, which can be satisfied by filing a charge with the Minnesota Human Rights Department. Sometimes, the acts of harassment can constitute a “pattern” also known as a “continuing violation” or your rights, but even in these circumstances, the claim have to be filed within 300 days or one year of the last act in the pattern.
2. Does the conduct have to be sexual in nature?
Sexual harassment doesn’t just cover conduct directed at you with a “sexual” intent, for instance when the harasser is seeking to initiate contact of a sexual nature, or is making crude comments about physical appearance or body parts, etc. If someone is engaging in bullying or abusive conduct directed toward one gender and not the other, this is actionable sexual harassment even if there is not sexual intent present.
3. What if it is just flirting that makes me uncomfortable in the workplace?
This type of conduct unfortunately persists in the workplace, and is best dealt with by specifically informing the offending employee that this isn’t welcome, making an internal complaint to HR or someone in authority if this direct approach makes you uncomfortable or is unsuccessful. Then, if the behavior persists, you’ve made clear in the past that it isn’t welcomed, and you will be in a strong position to asset a successful claim for sexual harassment.
4. How bad does conduct have to be to create a “hostile environment”?
This gets into the most difficult and ill-defined area of sexual harassment law. Under federal and state law the offending conduct has to be considered “severe or pervasive” enough to alter the terms and conditions of employment, from the perspective of a reasonable person. This has, unfortunately, led to published decisions in the area of sexual harassment which are all over the map, with really egregious conduct sometimes being held not to satisfy these standards in litigation. One hoped-for development and potential legacy from the #MeToo could be a relaxing of these standards, but it could be years before this type of legislative or legal change can be accomplished. The most effective step a target of sexual harassment can take is to present the complaint about this offending conduct with an experienced advocate, who can make the impact of each incident clear, and who can present the cumulative impact of all of the events at issue.
Schaefer Halleen lawyers have been responsible for prosecuting some of the most groundbreaking sexual cases in the country, including the first case ever certified as a class on a sexual harassment basis, Jenson, et al. v. Eveleth Mines, later made into the movie North Country, starring Charlize Theron and Woody Harrelson. (gilberteyecare.com) We are available for a free consultation to assist you in determining whether you have been subject to actionable sexual harassment and answer any other sexual harassment questions.