Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964. There are two theories under which an individual can establish that they have been sexually harassed:
- harassment that culminates in a tangible employment action, for which employers are strictly liable, and
- harassment that takes place in the absence of a tangible employment action, to which employers may assert an affirmative defense.
A tangible employment action is a significant change in employment status, such as:
- hiring, firing, failing to promote, reassignment with significantly different responsibilities, or
- a decision causing a significant change in benefits.
Liability will be imposed when a supervisor undertakes or recommends a tangible job action based on a subordinate's response to unwelcome sexual demands. The result is the same whether the employee rejects the demands and is subjected to an adverse tangible employment action or submits to the demands and consequently obtains a tangible job benefit.
Washington D.C. Sexual Harassment Attorney
In the absence of a tangible employment action, an employee must show that the sexual harassment is so severe or pervasive as to alter the conditions of employment. Although a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious (such as a physical assault). However, under this theory, the employee generally has a duty to mitigate. Thus, the Supreme Court has determined that employers are entitled to present evidence of an affirmative defense to such a claim which is comprised of two necessary elements:
- that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and;
- that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Because of our extensive experience with issues of sexual harassment, KCN can help you protect your rights through representation, internal investigations, education of staff, and the crafting of appropriate policies.
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