Many of us already know that sexual harassment is illegal, but do you know how many workplace behaviors qualify as unlawful harassment? Do you know that your harasser does not have to be of the opposite sex to be liable for sexual harassment? Same-sex harassment in the workplace is real, and it is illegal.
If you have been affected by same-sex harassment at work , we have the experience and skills to help you. Our attorneys at O’Connor, Parsons, Lane & Noble, LLC have represented thousands of employees facing poor treatment at work, and we can help you put an end to mistreatment at your office.
What Is Same-Sex Harassment?
To answer this question, let’s start by defining sexual harassment. Under federal and state law, sexual harassment is a form of discrimination based on someone’s sex or gender. Sexual harassment occurs in one of the following two ways:
- Quid pro quo harassment is when your employer requires you to accept unwanted sexual advances or requests in order to keep your job or receive work benefits.
- Hostile work environment harassment is when someone under your employer’s control engages in unwelcome and offensive sex-based behavior that is so extreme or pervasive that a reasonable person would call your workplace hostile.
Regardless of your sexual orientation, if a supervisor of the same sex makes an unwanted request for sexual activity with you in exchange for a work benefit, that is same-sex harassment. And if someone of the same sex frequently makes offensive jokes or comments about sex or gender, that is same-sex harassment. These examples are not exhaustive, but they demonstrate that unlawful, harassing behavior can come from anyone.
Unlawful harassment does not need to be motivated by a harasser’s sexual desire. Harassment just needs to be unwelcome and based on someone’s sex or gender. These unwanted behaviors from others can be verbal or nonverbal, and they can come up in surprising ways we will discuss below.
Offensive Conduct Referring to Someone’s Sex or Gender
As we stated above, sexual harassment does not have to be motivated by a harasser’s sexual desire. If someone in your workplace constantly makes statements about what behaviors they consider appropriate for men or women, they could be committing sexual harassment. This is true even when the harasser is making generalizations about their own sex.
For instance, if a coworker who identifies as female makes frequent, offensive comments about how women should behave compared to men or non-binary individuals, she could be guilty of sexual harassment. Or if a supervisor who identifies as male starts ranking the men in the office according to their “masculinity,” that could be sexual harassment. Additionally, individuals who use non-verbal conduct to stereotype or single out individuals based on their sex or gender can be guilty of sexual harassment.
Offensive Conduct Referring to Sexual Orientation
Someone can also commit sexual harassment by making extreme or constant offensive remarks about someone’s sexual orientation. Harassers can be guilty of this kind of harassment even if they are making remarks about their own sexual orientation. The test of whether this behavior is unlawful harassment is whether it is extreme or frequent enough to make a reasonable person feel like their workplace is unsafe.
An Employee Can Be a Victim of Same-Sex Harassment Even If They Are Not the Target
You do not have to be the target of someone’s sex-based, offensive conduct to have a right to complain or sue for sexual harassment. You might witness someone of the same sex or opposite sex taunt or insult someone of the same sex or opposite sex for their sex or gender. The person receiving the taunts could have a valid sexual harassment claim, and so could you. And if your harasser’s behavior does not target anyone in particular in your workplace, they could still be liable for sexual harassment. For example, an individual who constantly displays disrespectful, sex-based images at their desk or exposes their private parts in the workplace could be guilty of sexual harassment.
If sex-based conduct occurring in your workplace feels uncomfortable, speak to an experienced employment attorney. A good attorney can help you identify, prevent, and address unlawful harassment.
Preventing Same-Sex Harassment
One of the most important steps you must take to protect your rights against same-sex harassment is to establish that the harassing conduct is unwelcome. Immediately tell your harasser that they must stop their behavior. Putting your harasser on alert can prevent future harassment, and if the harassment continues, your initial warning can strengthen a legal complaint. If you cannot prove that the harassment you complain of was unwelcome, you will likely lose any claim you file to remedy the problem. If your harasser does not stop their offensive behavior after your warning, your next step is to formally report the harassment at work.
How to Report Same-Sex Harassment
Read your employer’s procedures for how to file a harassment report. Following your employer’s rules can help you get quick results and leave your employer defenseless in a lawsuit or complaint.
If you file a complaint or lawsuit to hold your employer accountable for a hostile work environment, it can defend itself by proving that you unreasonably failed to use its internal complaint procedures. You do not want to give your employer this opportunity, so use the complaint procedures it provides. If your employer does not have a complaint procedure, report the harassment to your supervisor or human resources. And if you do not achieve resolution after filing a formal, internal complaint, you are ready to file a same-sex harassment claim.
Filing a Same-Sex Harassment Claim
The New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964 protect you against sexual harassment at work. Both laws give you the right to financial and other legal relief by filing complaints with the government or civil lawsuits. You can file a federal complaint with the U.S. Equal Employment Opportunity Commission (EEOC). And you can file a state complaint with the Division of Civil Rights (DCR) of the New Jersey Department of Law & Public Safety.
If you want to file a DCR or EEOC complaint, you have 180 days to do so—you have 300 days for an EEOC complaint if state law also covers your complaint. If you want to file a federal lawsuit, you must first receive a Notice of Right to Sue from the EEOC and then sue within 90 days of the notice. You do not need a Right to Sue from the DCR to file a state lawsuit, but you must file your lawsuit within two years.
Let Our Attorneys Take Care of You
When holding your employer accountable for harassment, you want a compassionate and experienced advocate by your side. At O’Connor, Parsons, Lane & Noble, our award-winning New Jersey employment attorneys treat our clients’ cases with sensitivity and care. We get effective results and are tough on our clients’ opponents when we need to be. We are ready to fight for your right to a safe work environment. Please call us at 908-928-9200 or visit our website to schedule a free consultation.