How to Prove Sexual Harassment at Work in New York

Sexual harassment is illegal, according to New York and federal law, and leads to severe financial and psychological repercussions for victims. Jokes, subtle remarks, and outright physical assault are all forms of sexual harassment and should never be tolerated in the workplace.

Fortunately, victims can seek justice through a sexual harassment claim, but they must first understand how to prove sexual harassment at workplace. For this reason, victims should contact a New York City sexual harassment attorney to help ensure their claim leads to justice.

What Is Sexual Harassment in the Workplace?

Sexual harassment in the workplace refers to hostility or abuse directed at a particular individual or individuals because of their gender. It encompasses far more than hostile or abusive behavior based on sex, although many mistakenly believe that's all it is. Gender refers to an individual's sexual orientation and identity.

Although men are commonly the harassers in these cases, they may also be victims. Sexual harassment in the workplace statistics show that women are guilty of sexual harassment as well.

Regardless of who the aggressor or victim is, the result is always the same — the destruction of worker morale and productivity and significant emotional and even financial pain.

Examples of Sexual Harassment in the Workplace

Examples that constitute sexual harassment in the workplace include:

• Discrimination based on gender;
• Quid pro quo harassment (requesting sexual favors for job protection);
• Undesired sexual advances or activity;
• Sexual commentary, jokes, or discussions;
• Sexual communications, including emails and texts;
• Comments on the appearance of another;
• Sending sexually explicit photos or images.

Two Types of Sexual Harassment at Work

There are essentially two types of workplace sexual harassment that can occur. They are:

• Quid Pro Quo Sexual Harassment: In this type of harassment, a harasser requests sexual favors or contact in exchange for some job benefit or job protection. For instance, a boss who tells their employee that their promotion is contingent upon having sex with them has engaged in quid pro quo workplace sexual harassment.
• Hostile Work Environment: Hostile work environment is the most common type of workplace sexual harassment and involves harassment by colleagues. It is of such a nature that it interferes with a victim's work performance and creates a hostile or intimidating atmosphere in the workplace.

What Is Considered Sexual Harassment at Work?

These are some of the behaviors that are considered sexual harassment:

Verbal Sexual Harassment in the Workplace

Sexual harassment does not only involve physical acts. Many types of verbal communication can be considered sexual harassment, such as comments about employees' dress, hair, and makeup.

Also, the use of particular names for employees may qualify as verbal harassment, such as calling an employee "stud," "honey," "baby," or some other sexually-charged name.

Other types of verbal sexual harassment may also include:

• Whistling;
• Cat calls;
• Sexual innuendos;
• Repeated, unwanted sexual advances or requests.

Sexual Harassment Through Digital Communication

Now that much of the world communicates digitally, sexual harassment in the digital realm has become rampant. In many jobs, employees are given work email accounts and phones. It is through these and other forms of communication that digital sexual harassment tends to happen.

Common instances of digitally sexually harassing activity include:

• Unwanted sexual emails and texts;
• Unwanted sexual videos;
• Unwanted sexual photos;
• Unwanted digital requests for romantic or sexual activity.

Non-Verbal Sexual Harassment at the Workplace

Sometimes, sexual harassment occurs through nonverbal communication, which can be just as harassing as words and other forms of sexual harassment. Common forms of nonverbal sexual harassment can involve:

• Following or stalking a worker;
• Impeding a person's path;
• Staring at someone;
• Looking at a person from head to toe in a scanning fashion;
• Using facial expressions and innuendos, such as winks and kiss blowing;
• Taking off clothes in front of someone;
• Spying on someone, especially while they are changing or using the bathroom.

Physical Sexual Harassment or Sexual Assault

Sexual harassment can quickly turn into sexual assault if not dealt with swiftly. The two differ in that sexual assault involves the direct use of force for a sexual end. When sexual assault occurs, criminal law also applies.

Common forms of sexual assault include:

• Fondling;
• Unwanted sexual touching;
• Sexual battery;
• Rape.

Victims of sexual assault should immediately inform the police and their supervisor. They should also seek medical attention to determine the extent of the damage to their body and perhaps for evidence-collection purposes as well.

What Is NOT Considered Sexual Harassment in the Workplace?

Not all inappropriate comments or actions rise to the level of sexual harassment in the workplace. Additionally, one-time incidents may not always support a claim of harassment.

Other instances of inappropriate behavior not rising to the level of sexual harassment might include:

• A single joke;
• A single inappropriate comment;
• A comment referring to a person's look that is not sexual in nature;
• A single incident of unwanted advances;
• Unreported instances of harassment committed by a coworker.

Can You Sue for Sexual Harassment in the Workplace?

Victims of sexual harassment can sue the individual who is responsible for committing the harassment. A lawsuit may also be brought against employers and supervisors whose duty is to know how to prevent sexual harassment in the workplace.

After deciding on legal action, the first step is to find an experienced NYC employment lawyer free consultation. They will know how to proceed after reviewing your case. Without an attorney, it is often nearly impossible for victims to get the true justice they deserve.

Steps for Proving Sexual Harassment in the Workplace

You need proof of sexual harassment in order to file a claim. So if you are experiencing workplace harassment of a sexual nature, follow these steps to protect your claim:

1. Write down everything you can about the incidents of harassment you are facing, including who, where, how, and when.
2. Follow the procedures outlined in your company's sexual harassment prevention policy.
3. Communicate your lack of consent to the sexual harasser and document this communication.
4. Speak with your supervisor or human resources about the harassment and create a written complaint. Doing so will establish an important paper trail attesting to the harassment.
5. Continue being a productive employee and save all your job performance reviews.
6. Start a log that contains every action taken by you, your boss, and the harasser.
7. Lean on friends and family for support. Consider seeking professional counseling help as well. Sexual harassment is a stressful situation that can severely distress even the toughest worker. You do not and should not have to go through it alone.
8. Seek the services of an experienced New York sexual harassment lawyer to help you put an end to the harassment and process your claim.

6 Don’ts for Victims of Sexual Harassment in the Workplace

If you are wondering how to handle sexual harassment in the workplace, you should know that there are certain things you should not do.  

Don’t Destroy the Evidence of the Harassing Behavior

Evidence provides the backbone for your sexual harassment case, including inappropriate texts, pictures, and commentary. Although your first instinct might be to delete or throw them out, hold onto them. Later on, they will be powerful evidence that backs up your allegations.

Store evidence in a safe place, such as on a hard drive for digital communications. If the evidence is on paper, such as a sexual drawing, make copies of it and keep them safe.

Don’t Wait Too Long Before You File a Claim

A valid sexual harassment claim can become void if you wait too long to take action. Critical time limits must be met, such as the statute of limitations. According to New York law, victims have a total of three years from the last incident of sexual harassment to file their claims.

If the claim is being pursued federally, it must be filed within 300 days with the Equal Employment Opportunity Commission.

Don’t Think Retaliation Is Allowed

Victims are correct in believing that retaliation might occur after they file a complaint for sexual harassment, even after the statute of limitations has passed. However, just because it occurs does not mean it is allowable. In fact, retaliation for reporting sexual harassment is expressly prohibited in both state and federal laws.

Common forms of retaliation include:

• Demotion;
• Being skipped over for a promotion;
• Being fired;
• Reassignment to less desirable duties;
• Hostile treatment.

If you experience any of these actions, know that they are never permissible.

Don’t Assume You Are the Only Victim of the Perpetrator’s Behavior

If you are experiencing sexually harassing conduct in the workplace, never assume that you are the only victim. If a hostile work environment has been created, it is likely that other workers have also fallen victim to workplace sexual harassment.

Therefore, by coming forward, you may be helping others alleviate their situations as well. Even if you don't feel you have much to report, someone else may benefit from your actions.

Don’t Think You Are Overly Sensitive to Jokes

Jokes are often a powerful form of sexual harassment. Yet, harassers feel they can hide behind them and throw out the phrase, "I was just joking," to make everything okay. However, it is never okay to make jokes based on someone's gender identity. State and federal law consider them to be sexual harassment.

As a victim, your sensitivity to sexually harassing jokes is a good thing. It prevents you from getting desensitized to unlawful sexual behavior.

Don’t Mistake Sexual Assault and Sexual Harassment

Sexual harassment and sexual assault are not the same. If you have been subjected to violence, incapacitation, or strong-arm coercion for the purpose of involuntary sexual contact or activity, you are no longer looking at workplace sexual harassment but sexual assault instead.

Sexual assault is a violent sexual crime that warrants a direct call to 911 and often a trip to a healthcare provider for care and evidence gathering. Victims should also seek support from friends, family, and professionals.

Can Sexual Harassment Happen Outside of Work?

Many believe that workplace sexual harassment can only occur during work hours and on the job site. However, this is far from the truth. Sexual harassment in New York can occur outside of work.

State and federal laws hold that geography is not a determining factor for sexual harassment claims. As long as some type of employment relationship exists, a claim may be sustained if the harassing activities are repetitive, severe, or foster a hostile work environment.

Some off-work activities that New York Courts have found to be sexual harassment include:

• Romantic communications;
• Erotic communications;
• Transmission of sexual material.

As long as there is an employment link, the case may proceed.

Consequences of Sexual Harassment in the Workplace

There are no good consequences that come from sexual harassment in the workplace. In fact, sexual harassment leads to a mountain of negative repercussions for victims, other employees, and the company itself.

Sadly, sexual harassment continues to be quite common in New York and around the country, leading to devastating consequences for victims, including:

• Loss of economic opportunity and wages;
• Medical costs for treatment;
• Pain and suffering;
• Emotional distress;
• Mental anguish;
• PTSD.

But the repercussions are not limited to victims. Other workers also tend to suffer, even when they are not the direct target of sexual harassment. They don't feel safe when there is an air of hostility in the workplace and often wonder whether they will be targeted. The results are not good and include:

• Loss of worker morale;
• Loss of productivity;
• Mental and emotional turmoil.

For the company itself, sexual harassment works against growth and productivity, the two things all businesses must excel in to survive. High employee turnover also results, leaving many companies scrambling for quality workers.

How a Sexual Harassment Lawyer Can Help You

Pursuing a sexual harassment claim is complex and requires experience and a deep knowledge of the procedures and rules involved.

Victims who need justice for acts of sexual harassment deserve the peace of mind that their claim is being managed correctly and with their best interests in mind. The sexual harassment attorneys at the Jacob Fuchsberg Law Firm do just that.

For a free consultation, contact us at 212-869-3500 and learn what we can do for you.