How is Sexual Harassment in the Workplace Defined?
More than 70 percent of women who are the victims of workplace sexual harassment never report the incident or try to hold their harassers accountable. This article answers some commonly asked questions about workplace sexual harassment and how you can hold your employer accountable if you are facing it.
Federal and state laws protect Colorado employees from sexual harassment.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) is a federal law that prohibits all forms of sex-based discrimination, including sexual harassment. Title VII also prohibits harassment against the LGBTQ+ community.
Title VII applies to state and local governments and to all employers with 15 or more employees. The federal law does not apply to businesses with fewer than 15 employees.
In addition to making sexual harassment illegal, Title VII also prohibits employers from retaliating against employees who file a discrimination complaint or lawsuit.
Colorado Anti-Discrimination Act
Sexual harassment is also prohibited under Colorado’s Anti-Discrimination Act. Colorado Rev. Stat. Sec. 24-34-402
This anti-discrimination law prohibits sexual harassment in the workplace regardless of employer size. Even employers who have fewer than 15 employees and are thus exempt from Title VII must comply with the state law.
Like Title VII, the Colorado Anti-Discrimination Act also protects employees from harassment based on sexual orientation or gender identity.
Sexual harassment is defined in the Bouvier Law Dictionary as “unwelcome conduct of a sexual nature that interferes with its recipient’s work or academic environment.”
Examples of sexual harassment can include:
- harassment by a co-worker, supervisor, or customer
- unwanted touching
- sexual propositions
- using derogatory names or terms
- spreading sexual rumors
- sexual stereotyping
You can experience two distinct types of sexual harassment: quid pro quo and hostile work environment sexual harassment.
Quid pro quo sexual harassment occurs when an employee submits to sexual advances in return for a job benefit or is punished for rejecting those advances.
Only a supervisor has the authority to alter the terms and conditions of a worker’s employment. Therefore, only a supervisor may commit quid pro quo sexual harassment. McPherson v. HCA-HealthONE, LLC, 202 F. Supp. 2d 1156, 1160 (D. Colo. 2002)
Sometimes sexual harassment is severe or frequent enough to interfere with your ability to do your job. This is known as hostile work environment sexual harassment.
Courts in the Tenth Circuit, which includes Colorado, consider multiple factors when hearing hostile work environment cases. Those factors include:
- the frequency of the harassment
- its severity
- whether it is physically threatening or humiliating, or merely offensive
- whether it unreasonably interferes with an employee’s work performance. Honeycutt v. Safeway, Inc. (D. Colo. 2007)
Isolated offensive incidents will usually not rise to the level of sexual harassment. You will need to show that a pattern of sexual harassment or discrimination created a hostile work environment for you.
To prove a claim for hostile work environment sexual harassment, you must show:
- that the conduct was unwelcome and offensive
- that it was sexual in nature or directed at you because of your gender
- that it was sufficiently severe or pervasive to alter the conditions of your employment and create an abusive working environment. Am. Legion v. Colo. Civil Rights Comm’n, No. 10CA0254, 2011 Colo. App. LEXIS 319, at *1 (App. Jan. 13, 2011)
If you’ve experienced workplace sexual harassment, your discrimination claim can be filed either with the Colorado Civil Rights Division (CCRD) or the Equal Employment Opportunity Commission, the federal administrative agency commonly called the EEOC. The two agencies have a work-sharing agreement, which simply means they cooperate with each other to process claims.
Filing a claim with both agencies is unnecessary as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.
Colorado’s anti-discrimination law covers employers of any size. If you want to file with the EEOC, your employer must have 15 or more employees.
If you are filing a claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 180 days of the date you believe you were discriminated against.
To preserve your sexual harassment claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 300 days of the date you believe you were discriminated against.
If you miss either one of these deadlines, you cannot recoup damages from your employer. However, in the event of a “continuing pattern of discrimination,” the continuing violation doctrine allows a plaintiff to bring claims for alleged discriminatory acts which occur before the statutory time period, so long as at least one act occurs within that time frame.
When your claim is filed, the EEOC will give you a copy of it with what’s called your “charge number.” This is just your claim’s identifying number. Within 10 days, the EEOC will also send a notice and a copy of the claim to the employer.
At this point, the EEOC may decide to do one of the following:
- Ask you and your employer to take part in mediation
- Ask your employer to provide a written answer to your claim and answer questions about it. Your charge will then be given to an investigator.
- Dismiss your claim if the EEOC does not have jurisdiction or if it was not filed in time.
If the EEOC decides to investigate your charge, they may interview witnesses and gather documents. Once the investigation is complete, you and your employer will be notified of the results.
If the EEOC determines that workplace sexual harassment did not occur, you will receive a notice of your right to sue. This notice gives you permission to file a lawsuit in a court of law.
If the EEOC determines that discrimination occurred, they will try to reach a voluntary settlement with your employer.
All is not yet lost. If your case is not resolved by an administrative agency, you will need to pursue your claim in court.
You cannot file a federal workplace sexual harassment case in court without first going to the EEOC and having the agency dismiss your claim. This process is called exhausting your administrative remedies. Similarly, before you can proceed with a lawsuit based on your state discrimination claim, you must file with the Colorado Civil Rights Division.
Because the Colorado Anti-Discrimination Act caps damages, many Colorado attorneys choose to file employment discrimination cases in federal court using federal law.
In order to file a claim in federal court, the EEOC must first issue a document known as dismissal and notice of rights or notice of right to sue. This document gives you permission to move forward with your lawsuit.
The Job Protection and Civil Rights Enforcement Act of 2013 allows employees alleging workplace discrimination to seek the following:
- front pay
- back pay
- interest on back pay
- reinstatement or hiring
- attorney’s fees
- compensatory damages, which pay for out-of-pocket expenses caused by the harassment
- punitive damages, which punish an employer who has committed an especially malicious or reckless act of sex-based discrimination
- liquidated damages for discriminatory acts or practices based on “malice or reckless indifference to the rights of the plaintiff”
Employees alleging discrimination also have a right to a jury trial. Prior to 2015, employees were able to seek only hiring, reinstatement, promotion, and back pay.
If you have been sexually harassed at work, you can ask the court for lost back pay from the discharge to the trial, and lost front pay from the trial onward.
A calculation of back pay should include your base salary amount and pay raises you reasonably expected to receive. It should also include sick leave, vacation pay, and other fringe benefits during the back pay period.
Front pay is awarded to former employees whose employers cannot rehire or reinstate them within the organization. Back pay is also awarded to former employees. However, employers can forego this obligation if the employee accepts an offer of reinstatement to the same or similar position that accounts for the wages that they’re due.
Tenth Circuit courts generally prefer reinstatement to awarding front pay. Front pay is typically only awarded when:
- the employer is hostile
- an amicable working relationship is impossible, or
- animosity caused by the lawsuit has irreparably damaged the employer-employee relationship.