Sexual Harassment in the Workplace: The Burden of Proof and the Evidentiary Standard

What Is Workplace Sexual Harassment?

To construe the term literally, sexual harassment is to harass a person due to their sex. Unwelcome sexual advances, sexual acts, and solicitation for sexual favors constitute sexual harassment. These acts may be verbal, nonverbal, or physical.

Several federal and state laws prohibit sexual harassment in the workplace. They aim to make the workplace as safe and conducive as can be for all employees. Although individual businesses typically have codes of ethics that forbid sexual harassment, the law does not normally give a person the right to file a lawsuit based on a company’s own policies. 

Not all acts that one may think constitute sexual harassment are prohibited by law. Also, there are evidentiary standards in court to prove a case of sexual assault. Therefore, filing a case against an employer may be difficult for any employee. That is why employees need to understand the evidentiary requirements to make a compelling case in court.

Laws Against Workplace Sexual Harassment

The foremost federal law on workplace sexual harassment is Title VII of the Civil Rights Act of 1964. It prohibits workplace discrimination based on sex and many other individual characteristics. Since sexual harassment is a form of sex-based discrimination, it is prohibited by the Act. However, this law is only applicable to employers with 15 or more employees.

Fortunately, a similar law protects individuals in Florida. It is called the Florida Civil Rights Act of 1992. These two laws recognize that the harasser and victim could be anybody. They could be an employee or employer of the company. The harrasser could also be a non-employee of the employer, such as a client, that the company does not protect their employee from.

Acts That Constitute Workplace Sexual Harassment

The Equal Employment Opportunity Commission (EEOC) classifies sexual harassment into two groups:

  • Quid pro quo harassment
  • Hostile work environment harassment 
  • Sexual Assault

Quid pro quo harassment is where a person asks for something – often a date or sexual favors – in exchange for some work benefit such as a raise, a better schedule, or a promotion. For example, they demand sexual intercourse as a condition for promoting the victim. It may also be requesting a sexual favor from an employee in exchange for not firing them.

Meanwhile, hostile work environment harassment involves sexual misconduct that is frequent, pervasive, and unwanted to the exent that it makes the employee really miserable at work. The work environment thus becomes abusive, and the victim can no longer comfortably carry out their work duties. Examples of this could be repeated offensive sexual jokes or inappropriate touching.

What Does Not Constitute Sexual Harassment?

The EEOC administers the Civil Rights Act of 1964. According to them, certain behaviors are not enough to constitute sexual harassment, such as:

  • Simple teasing
  • Offhand comments
  • Isolated incidents that are not serious

Evidentiary Standard for Sexual Harassment Claims

To get justice, the victim often needs to file a Charge of Discrimination with the appropriate government agency and then file a workplace sexual harassment suit. Such sexual harassment claims need to be proven by a “preponderance of the evidence.” This means the victim needs to prove that there is more than a 50% chance the offensive conduct happened. This standard of proof is used in civil cases and is lower than that used in criminal cases.

Although the standard seems low, proving it in court can be challenging. It requires the skill of experienced and professional sexual harassment lawyers. It also requires the victim to have gathered adequate evidence of the harassment. 

Required Elements of a Sexual Harassment Claim

The EEOC has policy guidelines for sexual harassment. They are from relevant court decisions and legal developments on workplace sexual harassment. One can infer from the guidelines that the following elements need to be proved for a successful sexual harassment case.

  • The victim was subject to unwanted sexual conduct. Such conduct could constitute quid pro quo or hostile work environment harassment.
  • That the sexual conduct in question would be offensive to a reasonable person.
  • That the conduct was unwelcome by the victim.
  • That the alleged harassment was due to the employee’s sex.
  • That agreement to the conduct was to receive a job benefit, or refusal to engage led to a job detriment.
  • That the harassment was significant enough to create a hostile abusive work environment.
  • That there is a basis for the employer’s liability.

While this may be a helpful guide, it is still best to consult with our employment lawyers in Miami. They can further enlighten you concerning your specific case.

Other Helpful Evidence

Certain evidence might help the victim meet  this burden of proof. They include the following:

  • Communication records of the supervisor’s sexual demands (emails, text messages, DMs, phone records)
  • Physical treatment, mental health, or  therapy records 
  • Witnesses of the alleged sexual advances
  • Documented complaints to supervisors, managers, human resources, and/or the boss/owner

Promptly contacting an employment attorney can be helpful in these sorts of situations. They can advise you on the necessary evidence to gather and how to report the harassment to help make your claim better. Also, they can guide you on the proper steps to report or file a suit.

Employer Liability for Workplace Sexual Harassment

The US supreme court has rejected two notions of employer liability. The first is that an employer is always liable for sexual harassment by a supervisor. The second is that employers are not liable unless the harassment is reported. Instead, employers’ liability depends on the type of sexual harassment in question.

An employer is liable when a supervisor’s actions lead to adverse employment action. This is in the case of quid pro quo harassment. Adverse actions include termination, loss of wages, or unfair denial of promotion. 

If the harassment leads to a hostile work environment, the employer can avoid liability if:

  • It reasonably created corrective and preventive opportunities to stop the harassment; and
  • The employee did not take advantage of said opportunities for no good reason.

Lastly, there is the case of harassment by non-supervisory employees and non-employees. The employer will be liable, but usually only if it knew or should have known about the harassment but took no prompt steps to intervene appropriately. For this reason, it is important to be able to prove that the sexual harassment was reported (by email, text message, other messaging service, or memorandum) but ignored.

FairLaw Firm Sexual Harassment Lawyers

Workplace sexual harassment can be difficult to prove. In particular, hostile work environment cases are often complicated. Due to its nature, employers find it easy to deny that the abuse took place in the first place without a willing witness beyond the victim or some other evidence besides what the victim will say.

At FairLaw Firm, our attorneys have extensive experience with workplace sexual harassment cases. We are informed about the common ways employers try to escape liability. Through quality legal representation, we fight forour clients’ employment rights.

Our services are tailored to individual needs, and we are wholly vested in each case’s result. If you require employer representation lawyers in Miami, contact us! Let’s get your case started immediately!