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Library - Employment Law
Discrimination & Retaliation
DAVID LETTERMAN’S CONFESSION:
WHEN IS SEX IN THE WORKPLACE UNLAWFUL?
Popular comedian and television personality David Letterman
confessed to having sexual relationships with women who worked on
his TV show. The important question is: Does Mr. Letterman’s conduct
expose him (or his company) to a sexual harassment lawsuit from
these women?
People talk of sexual harassment in the workplace but a
misunderstanding may arise as to its true meaning. Is flirtation in
the workplace sexual harassment? Does the telling of sexually-themed
jokes with co-workers constitute sexual harassment? When a
supervisor engages in sex with a subordinate, is this automatically
sexual harassment?
The law is very specific about when a person or an employer
may be liable for sexual harassment. The person who complains of
sexual harassment (i.e., the plaintiff) against a boss or co-worker
(i.e., the defendant) must prove all of the following
elements:
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1) |
There is a business, service, or professional relationship
between the plaintiff and the defendant or its agent. |
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2) |
The defendant made sexual advances, solicitations, sexual
requests, or demands for sexual compliance by the plaintiff, or
engaged in other verbal, visual or physical conduct of a sexual
nature based on gender, that were unwelcome and persistent or
severe. |
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3) |
There is an inability by the plaintiff to easily
terminate the relationship |
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4) |
The plaintiff has suffered or will suffer economic loss or
disadvantage or personal injury, including emotional distress or the
violation of a statutory or constitutional right, as a result of the
conduct described in number 2. |
Courts have recognized two types of sexual harassment. The
first type involves claims of quid pro quo harassment. The second
type involves harassment created by a “hostile environment.” Quid
pro quo harassment occurs when “submission to or rejection of
[unwelcome sexual] conduct by an individual is used as the basis for
employment decisions affecting” that individual. It typically exists
when submission to sexual conduct is made a condition of concrete
employment benefits, such as a promotion, a pay increase, or a job
itself. A classic example would be the boss who threatens to fire an
employee if the employee refuses to have sex with him (or her).
A hostile environment claim may arise where unwelcome sexual
conduct unreasonably interferes with an individual’s job performance
or creates an intimidating, hostile or offensive working
environment, even if it does not lead to tangible or economic job
consequences. An example of this would be the person who keeps
inappropriately touching a fellow co-worker despite repeated
requests to stop. Even if there is no threat of firing or job
demotion, the inappropriate touching is likely to either create an
offensive working environment or affect the co-worker’s job
performance or both.
In either type of sexual harassment, the complainant must
establish that the sexual conduct is unwelcome. Thus,
there is no unlawful harassment where the complaining individual
consented to the sexual conduct or voluntarily participated in said
conduct. In other words, if the sexual attention is welcomed or
consented to, it would not be harassment.
The area of sexual harassment litigation involves complex rules
that are continually evolving. If someone feels that he or she has
been the victim of sexual harassment in the workplace, it is always
a prudent idea to consult with an experienced employment attorney to
discuss legal remedies.
©
Law Offices C. Joe Sayas, Jr.
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