There are few workplace experiences more terrifying than when a boss abuses power and subjects a subordinate employee to sexual harassment. This power imbalance can make the employee feel like he or she has to tolerate the harassment, or worse, give in to these advances in order to keep the job or advance at the company. Thankfully, the law governing sexual harassment provides significant rights and legal protections in this scenario, and the affected employee has strong avenues to challenge this illegal conduct, make it promptly stop, and recover potentially significant damages. This blog describes these rights and remedies, and the steps any unfortunate employee should take when faced with this awful situation.
“Quid-Pro-Quo” Sexual Harassment
When your boss abuses his or her authority by directly making sexual advances toward you, this is considered “quid-pro-quo” sexual harassment. Quid-pro-quo is a Latin term meaning a favor or advantage granted in exchange for something – in this case acquiescing in the sexual advance. This “exchange” can be overt – your boss can explicitly state that accepting his or her advance is a condition of continued employment or some job benefit. It can also be tacit or unspoken, and the law will infer this exchange when the power dynamic is between a boss and a subordinate.
When conduct like this occurs, the affected employee should both report it through the appropriate channel(s) in the workplace, and promptly secure legal counsel to ensure that this internal complaint is made properly and is handled effectively and in accordance with what the law requires. In circumstances where the employer policy requires that internal complaints are made initially to your direct supervisor, this can be bypassed when the offending conduct is committed by the “boss.”
Whenever any complaint of “quid-pro-quo” sexual harassment is made, or even any complaint involving sexual harassment (discussed below), the employer has a legal obligation to both effectively investigate the complaint and, most importantly, take reasonable remedial/corrective action once the investigation is complete. In a “quid-pro-quo” harassment scenario, this will generally involve terminating the offending supervisor, especially when the employer has a “zero tolerance” policy against sexual harassment, which is often the case.
Your Right to No Retaliation
An employee brave enough to raise this complaint also has the right that it be handled confidentially, and that no retaliation occurs towards them. Handling these complaints confidentially means that the identity of the complainant must be handled very discreetly and not shared with anyone without a compelling “need to know” this information. All individuals interviewed in the investigation should be strongly warned against taking any retaliatory actions based on information conveyed in the investigation. Federal and state law provides significant protections against retaliation for any employee making a sexual harassment complaint.
Even when these precautions are taken, when corrective action (including termination) is taken against a boss accused of sexual harassment, individuals involved in the investigation (including witnesses interviewed) will generally be able to infer the identity of the employee making the complaint, and therefore may have a motive to retaliate even when cautioned against taking these actions. That’s why retaining legal counsel from the outset of this process is so important. Pushing back against any future acts of retaliation with counsel’s assistance is often effective. When it isn’t, there is always a very strong basis to allege and prove retaliation against any subsequent adverse action, including termination.
The Broad Scope of Protections Against Sexual Harassment
Sexual harassment covers far more than just “quid-pro-quo” advances. Any conduct or comments that sexualize the workplace, or that are abusive and directed toward a specific gender, can create a “hostile environment,” which is actionable under state and federal law. Therefore, even if your boss’s conduct doesn’t involve direct implied sexual advances, if this individual makes frequent comments of a sexual nature, behaves in a “locker room” manner, or exposes you to sexual images or pornography, this conduct, if it is recurring, can create a hostile work environment. Moreover, a boss who is a bully, abusive or degrading to a specific gender, even when this conduct is not directly or implicitly sexual, can be seen as creating a “hostile environment” under sexual harassment law.
In both of the above-scenarios, it is critically important to raise the same type of internal complaint, as the employer’s response to this complaint (or lack of any effective response) can be critical in establishing liability should litigation ensue. The employee making this complaint should expect confidentiality and is protected from retaliation. Effective legal counsel guiding you through this process is critical.
Keeping Detailed Records is Important
In either of the above scenarios, we advise our clients to keep detailed records of the behavior/comments which are conveyed in any complaint, and to document, in writing, the initial internal complaint and retain all documents associated with the complaint, including all written communications with the internal investigator (who sometimes may be a third party with experience in these types of investigations). These records should include detailed notes of exactly what behavior occurred or comments were made, with dates and witnesses identified. If you are in a state where one-party recording of conversations is permitted (and Minnesota is such as state), making these recordings and sharing them with counsel can be extremely powerful and admissible should litigation ensue. Be sure, however, that there are no employer-specific policies prohibiting such recordings.
The same detailed note-taking and document retention applies with equal importance to any acts that could be considered retaliatory after making an internal complaint.
In addition to retaining these records and documents, individuals subject to this kind of illegal behavior may become aware of other colleagues (either current or former employees) who have experienced the same illegal conduct by the same individual. These potential “me-too” witnesses should be shared in the internal complaint, and identified to legal counsel so that supportive statements/affidavits can be secured.
Options are still available if it is too late to make an internal complaint
Finally, even in circumstances when the opportunity to make an internal complaint has passed, for instance when you have quit rather than be subjected to these advances or illegal conduct, you should still contact experienced legal counsel as you may still have the opportunity to hold your former boss or employer accountable for forcing your resignation. Moreover, if you decline a sexual advance and are then terminated before having the opportunity to make a complaint, immediately seek experienced counsel as any termination in this scenario will likely be considered actionable, with significant remedies.
