If you have evidence that you were subjected to unwelcome, gender-based conduct at work, you should talk to an employment lawyer to see if you have a legitimate case. Before your initial meeting, you’ll want to know how a lawyer will assess your potential sexual harassment case. Being organized and prepared at the outset will make it easier for the lawyer to evaluate your case and advise you. For information about sexual harassment lawsuits in general, see Nolo’s article Suing for Harassment or Discrimination.
To hold your employer responsible for sexual harassment, it must be covered by the federal or a state law prohibiting sexual harassment in the workplace. Under federal law, employers with 15 or more employees are covered. Each state also has its own antiharassment laws, which may cover smaller employers.
Sexual harassment is any unwelcome sexual advance, oral or physical conduct of a sexual nature, or gender-based comments or actions that create an offensive or hostile work environment. But not all inappropriate or offensive conduct is sexual harassment as the law defines that term. The conduct you experienced must have both actually offended youand would have offended a reasonable person standing in your shoes at the time. For example, an employee might be offended by her coworker’s invitations to join a group of employees who regularly get together to socialize after work. But, if the average person would have seen this as a polite gesture, rather than a sexual advance, it won’t qualify as harassment.
Even conduct that meets the above definition of sexual harassment must meet another standard: the harassing conduct must also be “severe or pervasive.” Conduct that is frequent, persistent, or widespread will usually meet this definition. For example, daily encounters with a boss who tells a female employee how “hot” she is would be considered harassment. However, even a single incident can constitute harassment if it is egregious enough. For example, a supervisor or coworker sexually assaulting an employee would violate antiharassment laws (as well as criminal laws, most likely).
The work environment itself may also be harassing. A workplace that is rife with offensive visuals (such as “girlie” posters or vulgar cartoons), comments (dirty jokes, sexual innuendo, or “compliments” about female employees’ bodies) or conduct (nudity, simulation of sex acts) can also create a “hostile environment” under sexual harassment law.
When a supervisor harasses a subordinate, the employer is usually liable for the harassment, even if the employer had no knowledge of the harassment or opportunity to stop it. But, where a coworker harasses a peer (that is, someone not subordinate to the harasser), you do have to show that the employer was notified about the harassment. The reason is that the employer must be notified of the harassment and given a chance to address it appropriately before they will be held responsible for it. This means that the target of the harassment must report the conduct to a supervisor, manager, officer, or other managerial level employee in order to hold the employer liable for sexual harassment.
Sexual harassment can happen between a woman and man, or it can happen between two men or two women. It is no defense to a sexual harassment claim that the target of the harassment is the same gender as the harasser.
Although you may feel certain that you suffered sexual harassment at work, the law is very specific about what is and is not sexual harassment. An employment lawyer will evaluate your potential case based on the evidence you have to prove these essential elements described above.
If you were engaging in sexual banter yourself, told dirty jokes, or otherwise voluntarily participated in the conduct you now complain of, you may have difficult proving that the conduct was truly unwelcome. A lawyer will ask you how you responded to the alleged harasser and whether you made it known that you were offended by the conduct.
Your lawyer will also look to whether a reasonable person in your shoes would have found the conduct offensive. For example, it’s possible some employees might be offended by a calendar in a cubicle that depicts female track athletes in sportswear. However, a reasonable person very likely would not.
You will need evidence that you reported harassment if a coworker engaged in the offensive conduct. Keep a copy of any reports, letters, emails, or notes that you have to show that you told a manager about the harassment. On the other hand, if a supervisor harassed you, give the lawyer any evidence you have to prove the harassment, such as emails, texts, copies of offensive visuals, and the names of witnesses to (or other targets of) the harassment.
Did you lose pay as a result of the harassment? Sexual harassment sometimes takes the form of a supervisor or other person with authority demanding that the target of harassment submit to the harassment (go out on a date or allow physical contact) “or else.” The “or else” is some job-related “ransom” the harasser holds over the target, such as a promotion, demotion, cut in hours, or even termination. Detail for the lawyer any losses you have suffered because of the harassment or your resistance to it, such as reduced hours or pay. This may also include losses you suffered after reporting the harassment (which may be grounds for a retaliation claim).
The lawyer will be evaluating you to see how you’ll appear on the witness stand to the judge and jury. This evaluation covers your:
Dress as you would for court when you meet with the lawyer, organize your evidence in advance, and prepare as brief and coherent a summary of your case as possible.