The EEOC received more than 27,200 sexual harassment charges from fiscal years 2018 through 2021, and over 40% of them also alleged retaliation. That overlap shows how often a harassment complaint arrives with a second claim about the employer’s response.
Because of this pairing, the law should not be treated as a single set of rules, though discussions of workplace sexual harassment often do. In practice, four separate issues can decide a case before the conduct is ever proved. These issues are employer coverage, filing deadlines, employer notice, and retaliation.
Two Theories, One Statute
According to an Indiana harassment defense lawyer, harassment could take various forms that could cause not just physical but emotional distress to the victims.
There are two types of harassment that the federal law recognizes. The quid pro quo and hostile work environment harassment.
Exchange of employment benefits for sexual favors is known as “quid pro quo” harassment. The courts have determined that just one exchange can establish this type of harassment. In this case, the harasser has authority over the employee in some way.
A hostile work environment is about the severity and frequency of harassment. The conduct must be severe or pervasive enough to alter the conditions of employment.
To determine this, the courts ask whether the employee found the workplace hostile and whether a reasonable person would. This standard applies to conduct over email, text, chat, and video.
Two Things Harassment Does Not Mean Here
Harassment carries several legal meanings. Criminal statutes provide an offense of harassment with its own definition.
Looking at the Indiana code can give people a better insight into this matter. Indiana’s criminal harassment offense turns on an intent to harass, annoy, or alarm someone without any legitimate purpose, and it does not depend on an employment relationship.
Childhood sexual abuse claims are often independent of other claims, and their timelines are far longer. In California, for instance, there is a repeated extended civil window for childhood sexual abuse. A timeline is measured in decades rather than the months Title VII allows.
Survivors may file claims decades later, including against the organizations responsible for their care. The DeMarco Law Firm in Monrovia represents survivors of childhood sexual abuse. As a foster care sexual abuse lawyer, the firm has represented more than 400 survivors, including in cases against placement agencies and county systems.
Coverage and the Clock
Title VII affects employers with fifteen or more employees. Below that line, the federal statute just doesn’t apply, and whatever protection exists comes from a state or local fair employment law instead. A defendant can raise the headcount requirement at the outset, before the conduct is examined.
In most cases, employees covered by EEOC regulations have 180 calendar days from the date of a discriminatory event to file a complaint. If a state or local government prohibits the type of discrimination being alleged and there is an agency that enforces the prohibition, the time to file the complaint increases to 300 calendar days.
If an employee claims discrimination based on harassment, the time to file begins on the date of the last occurrence of that harassment. But, as part of its investigation, the EEOC looks at other similar occurrences that happened earlier, even if those occurrences occurred more than 180 days before the filing. Federal employees instead must contact an EEO counselor at their agency within 45 days of the incident.
Once the EEOC issues a Notice of Right to Sue, the filing of a lawsuit must occur within 90 days. That timing is brief and unforgiving, cutting off cases that had made it through all previous moves.
The requirement to file a charge has sometimes been considered a jurisdictional rule. This means a court cannot decide the merits of a case unless the requirement has been fulfilled. In the 2019 Fort Bend County v. Davis case, the Supreme Court ruled unanimously that the requirement is not jurisdictional. The court characterized it as a claim processing rule that an employer could lose if not timely asserted.
Why Internal Reporting Carries Legal Weight
An internal complaint isn’t required before an EEOC charge. It still does real work, because it tells the employer what is happening.
Who did the harassing changes to the analysis?
For a coworker, the employer answers only for its own negligence. In this case, liability turns on whether it knew or should have known and let the conduct continue.
For a supervisor, the rules come from two 1998 Supreme Court decisions, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth. If the supervisor’s harassment ended in a tangible employment action like a firing or demotion, the employer is automatically liable.
Short of that, the employer may raise a two-part defense. Both cases involved hostile environment claims with no tangible employment action, which is why the defense became central to claims of this kind.
Employers must prove two things to use this defense. One is if they took reasonable care to prevent harassment and corrected it promptly. Second is if the employee unreasonably failed to use the complaint process the employer offered. A good reason for skipping the process defeats the second part.
Retaliation Is Its Own Claim
Employees who report harassment under Title VII are protected even if their harassment claims are not ultimately proven. The protection applies as long as the employee held a reasonable, good-faith belief that the harassment took place. It also covers employees who testify or take part in an investigation into a harassment complaint. This shields employees from retaliatory termination and other adverse actions.
Burlington Northern & Santa Fe Railway Co. v. White (2006) defined the retaliation standard. If an employer action is materially adverse, meaning it could well dissuade a reasonable worker from making a complaint, then it is considered retaliatory. The worker in that case was moved off forklift duty to dirtier, more arduous track work and then suspended without pay for 37 days. A firing is not required. Petty slights and ordinary workplace friction fall short of the standard.
Harassment allegations can be dismissed before anyone examines the behavior in question. Title VII applies only to employers with fifteen or more employees, so a claim against a smaller business can be dismissed on that ground. A suit filed more than ninety days after the employee received the Notice of Right to Sue can also be dismissed. Employer notice can defeat a claim as well, particularly in coworker harassment cases where the employer did not know about the conduct. A retaliation claim stands apart, since it can succeed even when the harassment claim fails.
