Sexual Harassment in the Workplace

It’s easy to dismiss workplace sexual harassment as a hallmark of a bygone era. Unfortunately, the statistics show otherwise.

A 2018 survey by Stop Street Harassment — a nonprofit that documents gender-based street harassment — found that 81 percent of women and 43 percent of men have been harassed in their lifetime. Of the 996 women surveyed, 38 percent reported they were harassed in the workplace. Even more alarming: 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.

Whether obvious or subtle, workplace sexual harassment should never be tolerated. If you dread going to work each day because of sexual harassment from a coworker, supervisor, or even a customer — do not suffer in silence. Read this article to learn more about your legal recourse and how a workplace sexual harassment attorney can help hold your employer accountable.

Talk to a Colorado Workplace Sexual Harassment Attorney

A 2019 report by the global accounting network Deloitte revealed that workplace sexual harassment costs an annual average of $2.6 billion in lost productivity or $1,053 per victim. While staggering, those numbers pale by comparison to the emotional distress caused by sexual harassment. The workplace sexual harassment attorneys at Robinson & Henry, PC will treat your case with the compassion and care it deserves. Call 303-688-0944 today to begin your case assessment.

 

Colorado Workplace Sexual Harassment Laws

Federal and state laws protect Colorado employees from sexual harassment.

Title VII

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.

The Complaint Process

Filing the Complaint

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 (or 20 in age discrimination cases).

Filing Deadlines

State Deadline

To preserve your workplace discrimination claim under state law, you must file with the CCRD, or cross-file with the EEOC, within 180 days of the date you believe you were discriminated against.

Federal Deadline

To preserve your workplace discrimination claim under federal law, you must file with the EEOC, or cross-file with the state agency, within 300 days of the date you believe you were discriminated against.

Continuing Violation

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.

What Happens After I File a Claim?

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 the employer to take part in mediation
• Ask the 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.

Pursuing Your Claim in Court

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.

Deadlines to File Your Discrimination Lawsuit

Federal Claims

A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice of right to sue from the EEOC.

State Claims

A lawsuit based on your state claim must be filed within 90 days of receiving a similar letter from the Colorado Civil Rights Division.

If you miss these deadlines, you may lose your ability to pursue a workplace sexual harassment case.

What Exactly Is Workplace Sexual Harassment?

Sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 59, 106 S. Ct. 2399, 2401 (1986)

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

Types of Sexual Harassment

Federal and Colorado law recognizes two primary types of workplace sexual harassment:

1. quid pro quo sexual harassment
2. hostile work environment sexual harassment

Quid Pro Quo

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.

A claim of quid pro quo sexual harassment must be supported by a negative employment action that is separate and distinct from the underlying sexual misconduct (i.e., a demotion). Rogers v. City-County Health Dep’t, 30 F. App’x 883, 885 (10th Cir. 2002)

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)

In the 2013 case Polanco v. Roth, a district judge ordered an Adams County automotive shop owner to pay more than $100,000 to his former employee. The woman sued her ex-employer for quid pro quo sexual harassment after he terminated her employment.

During trial testimony, the shop owner admitted to making inappropriate sexual remarks to the woman, making sexual gestures toward her, and repeatedly asking her to give him massages.

Hostile Work Environment Sexual Harassment

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.

Tenth Circuit courts 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)

Proving a Sexual Harassment Claim

Although sexual harassment is often accompanied by economic injury, such as unequal pay, this is not a requirement for filing a complaint.

Likewise, you do not need to wait until your employer fires you before you can file a sexual harassment complaint or lawsuit:

“An employee is required to demonstrate only that the discriminatory conduct made the work environment subjectively and objectively hostile, not that it caused any psychological injury or impaired the employee’s work performance. The standard is not what a reasonable employee is capable of enduring, but whether the offensive acts alter the conditions of employment.”
Am. Legion v. Colo. Civil Rights Comm’n, No. 10CA0254, 2011 Colo. App. (App. Jan. 13, 2011)

The Work Environment Must Be Subjectively and Objectively Hostile

The work environment must be both subjectively and objectively hostile. The objective prong is satisfied if a reasonable person would find the workplace hostile or abusive.

Consequently, the subjective prong requires that the employee personally found the environment hostile or abusive. Cullens v. Wiegand, 2016 Colo. Dist. LEXIS 731

Elements of a Workplace Sexual Harassment Claim

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)

The Conduct Must Be Unwelcome

To constitute a hostile work environment, the sexual conduct must be considered unwelcome. This means that you did not invite this conduct, nor did you willingly participate in it. Consensual sexual conduct is not considered sexual harassment.

Unwelcome conduct or behavior could include verbal, visual, or physical harassment. It can come from any number of sources, including supervisors, co-workers, agents, and customers.

The Conduct Must Be Based on Sex

A key part of workplace sexual harassment lawsuits is demonstrating that members of one gender are exposed to unfavorable employment conditions. You also must show that members of another gender are not exposed to these conditions. Riske v. King Soopers, 366 F.3d 1085, 1091 (10th Cir. 2004)

“If the nature of an employee’s environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment.” Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir.1994)

Likewise, the harassment does not necessarily have to be sexual in nature if you can prove that it stemmed from sex-based discrimination.

The Conduct Must Be Severe or Pervasive

This factor is particularly important for courts considering workplace sexual harassment cases. The harassment does not need to be both severe and pervasive, although it may be (and often is).

Severe Conduct

A single instance of sexual harassment can create a hostile work environment if severe enough. Let’s look at a 2011 Colorado case as an example.

American Legion v. Colorado Civil Rights Commission

In this case, a Weld County bar manager filed claims of sexual harassment and wrongful termination against her former employer, a local American Legion post, with the Colorado Civil Rights Commission.

The woman claimed that the post commander “approached her closely, put his arm around her, and… rubbed his genitals against her right leg several times.” Am. Legion v. Colo. Civil Rights Comm’n

The manager, while troubled, believed that filing a complaint with her employer was “pointless” and might jeopardize her job. Less than three months later, she was fired for unclear reasons.

The Hearing

The Civil Rights Commission ordered a hearing before an administrative law judge. The judge concluded that “a single sexually offensive event is not sufficient to create a hostile work environment.” He further concluded that the woman had been terminated due to the group’s personal dislike of her, rather than any discriminatory reason.

The Appeal

The woman appealed the judge’s decision to the Civil Rights Commission. Upon review, the commission concluded that the incident was, in fact, sufficiently severe to establish a hostile work environment. The commission awarded back pay to the woman.

The American Legion post then appealed the ruling to the Colorado Court of Appeals, which upheld the Civil Rights Commission’s decision:

“The perpetrator was not a mere peer or customer, but the Post Commander. Moreover, he approached Ms. Meier in such a way that she could not get up from the chair where she was sitting… And he did this when others, including another bartender whom Ms. Meier was responsible for supervising, could see it, thus heightening its humiliating effect.”
Am. Legion v. Colo. Civil Rights Comm’n

Pervasive Conduct

There is no magic number of harassing acts necessary to prove a hostile work environment sexual harassment claim in Colorado. However, isolated offensive incidents will usually not rise to the level of sexual harassment. You will need to show a pattern of harassment or discrimination in order to meet this requirement:

“Isolated or trivial episodes of harassment are insufficient to satisfy that standard. A court must look to the totality of the circumstances to determine whether the alleged conduct is sufficiently pervasive to create a hostile environment.”
Honeycutt v. Safeway, Inc., 475 F. Supp. 2d 1063, 1068 (D. Colo. 2007)

Employer Liability

Sexual harassment does not always come directly from your employer. However, your employer can still be held legally responsible for the actions of its employees — or even customers:

“An employer who condones or tolerates the creation of such an environment should be held liable regardless of whether the environment was created by a co-employee or a nonemployee, since the employer ultimately controls the conditions of the work environment.”
Lockard v. Pizza Hut, 162 F.3d 1062, 1073-74 (10th Cir. 1998)

Failure to Take Remedial Action

An employer takes appropriate preventive or remedial action when its response is “reasonably calculated to end the harassment.” Apo-Owusu v. Univ. of Colo. Hosp. Auth. (D. Colo. Sep. 26, 2017)

In other words, your employer can be held legally responsible for workplace sexual harassment when the employer “knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
Lockard v. Pizza Hut

Remedies for a Hostile Work Environment

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
• costs
• punitive and compensatory damages
• 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.

Front Pay and Back Pay

In hostile work environment sexual harassment cases, employees may be awarded damages for lost back pay from the discharge to the trial, and lost front pay from the trial onward.

Back Pay

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

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.

Courts in the Tenth Circuit, which includes Colorado, 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.

Compensatory Damages

Compensatory damages are awarded for mental and emotional suffering. These damages pay victims for out-of-pocket expenses caused by the discrimination. This can include costs associated with a job search or medical expenses. Compensatory damages also pay victims for any emotional harm suffered, such as mental anguish, inconvenience, or loss of enjoyment of life.

Punitive Damages

Punitive damages are meant to punish an employer who has committed an especially malicious or reckless act of sex-based discrimination.

Limits On Compensatory & Punitive Damages

Title VII limits the sum amount of compensatory and punitive damages you can recover in a workplace sexual harassment case. These limits vary depending on the size of the employer:

• $50,000 for employers with 15-100 employees
• $100,000 for employers with 101-200 employees
• $200,000 for employers with 201-500 employees
• $300,000 for employers with more than 500 employees
  42 U.S.C.S. § 1981a

Front Pay and Back Pay are Not Compensatory Damages

Back pay and front pay are not subject to the caps on recovery of compensatory damages, are not considered elements of compensatory damages, and do not count against the compensatory damages caps. Black v. Waterman, (Colo. App. 2003)

Liquidated Damages

If your case involves intentional sex-based wage discrimination under the Equal Pay Act, you cannot recover either compensatory or punitive damages. However, you may be entitled to liquidated damages.

A Colorado judge may award liquidated damages in order to punish an especially malicious or reckless act of discrimination. The amount of liquidated damages that may be awarded is equal to the amount of back pay awarded to the victim.

Attorney’s Fees and Other Costs

If you are a victim of workplace sexual harassment, you also may be able to recover attorney’s fees, expert witness fees, and court costs.

Meet with a Colorado Workplace Sexual Harassment Attorney

Experiencing sexual harassment in the workplace can feel dehumanizing and isolating. Fortunately, you have a compassionate ally in Robinson & Henry. The workplace sexual harassment attorneys at R&H can assist you in filing a discrimination complaint with the appropriate agency. We also are fully prepared to advocate for you if you decide to proceed to district court. Call 303-688-0944 today to begin your case assessment.