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Sexual Favors in the Workplace

Acting on Unwelcome Behavior by a Supervisor

I have previously blogged about sexual harassment in the workplace. This blog deals with one precepitating events: demanding sexual favors.

Under federal and state law, sexual harassment is divided into either hostile work environment claims or quid pro quo claims. Quid pro quo is Latin for "this for that," which in the field of sex discrimination translates to demanding or requesting sexual favors in exchange for employment or other job-related benefits such as promotions and preferred work assignments or shifts. This form of sexual harassment must involve someone with authority over the victim, such as a supervisor or manager, and must clearly or unconditionally apply to a victim's employment.

Sexual harassment lawsuits that result from sexual favor occur for a variety of reasons including: (1) An employee rejects sex in exchange for a favor’ (2) An employee submits to sex in exchange for employment; (2) Sexual favors for employment occur even only once; (3) An employer was unaware the harassment had taken place; and (4) The accused was an not an employee but an agent of the company

While the specific damages in a case can differ from person to person, a lawyer generally will pursue compensation for lost wages, punitive damages, expenses and attorney fees related to the case. Also, if you have been fired or forced to quit because of sexual workplace harassment or sexual abuse, then your lawyer may be able to have you reinstated as an employee.

Sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is always inappropriate workplace conduct and should be reported to your employer immediately. Such conduct rises to the level of sexual harassment in two circumstances: 1) when submission to the conduct is made a term or condition of employment or is the basis for employment decisions about the employee; and 2) when the conduct is sufficiently severe or pervasive to create a hostile, intimidating or offensive work environment. A single incident may or may not be sufficient to create a hostile work environment. For example, a single occasional comment like "Hey, baby" or "honey," without more, probably will not constitute sexual harassment. But a single incident of extreme conduct, such as a sexual assault, could constitute sexual harassment. Sexual harassment can occur between individuals of the opposite and same sex.

In order to constitute sexual harassment, the offensive behavior must also be unwelcome. Unwelcomeness may be indicated by complaints made by the affected employee to the perpetrator or to other people. It also may be expressed in nonverbal ways, such as attempts by the affected employee to avoid the perpetrator.

An employer is liable for sexual harassment when its owners, corporate officers or other high-ranking people in the organization are found to have sexually harassed an employee. An employer is liable for sexual harassment of an employee by a supervisor when the harassment results in an employment action against the employee, such as a demotion or discharge. An employer is liable for sexual harassment between two coworkers, or sexual harassment of an employee by a non-employee, if the employer knew or should have known about the conduct. Generally speaking, an employer can avoid liability for sexual harassment by showing that it took immediate action to correct the harassment and the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, such as an internal grievance procedure for discrimination claims.

If you think that you have been sexually harassed, you should report the offensive conduct to a manager above the level of the alleged perpetrator. It is against the law for your employer to retaliate against you for reporting or participating in an investigation of possible harassment. If you sue without first trying to report the sexual harassment to your employer, you may lose because you did not use your company's complaint process.

Employers should have a good sexual harassment policy with an appropriate grievance process. The policy should be given to every employee with a form acknowledging that each employee received, understands and agrees to abide by the policy. Employers should take all reports of sexual harassment seriously. When a complaint is made, someone who is trained in this area of law should do an immediate investigation.

Federal law requires complaints of sexual harassment to be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days. Under no circumstances should the offended employee engage in the sexual favors out of fear of losing one’s job. These behaviors are no longer tolerated in the workplace.

Blog posted by Steven Mintz, aka Ethics Sage, on October 5, 2011