Perhaps one of the most common questions that I get from potential clients is whether the harassment that they have been subjected to at their job is illegal. Employees frequently assume that harassment, such as being called names or being exposed to curse words or being subjected to yelling and screaming, is illegal. In Maryland, however, as in most states, harassment is only illegal if the harassment is sexual in nature, or if it is racial or religious or age-based. In those instances, the harassment violates state and/or federal anti-discrimination laws. Merely being treated badly by your employer, however, is not illegal. While it may be unethical and unprofessional, employers can treat their employees badly, and if the employee does not like it, then the employee has an option — look for a new job!
Many people assume that sexual harassment is an aberration, that in 2008, employees rarely are subjected to such improper conduct in the workplace except in isolated cases. Well, my experience with sexual harassment cases suggests that, unfortunately, sexual harassment is alive and well in Baltimore City and County, in Howard County, in Frederick County — indeed, throughout Maryland.
Just in the past three weeks, I have been approached by women experiencing the following situations: a) a woman in Howard County working for a restaurant was subjected to coarse sexual language, hugged and kissed against her will, and then sexually assaulted by a coworker; b) a sales representative for a home improvement company in Baltimore City was stalked by a manager who repeatedly asked her on dates, used sexual language, tried to kiss her, and threatened to reduce her commissions if she failed to date him; and c) a salesperson for a retail store in Frederick was repeatedly asked out to dinner by her boss, subjected to inappropriate language and hugged and rubbed up against in a back room.
In each of these situations, when the employee complained to management, the employer either promised to take care of the situation — and then failed to take any concrete steps to make sure the problems would not continue — or terminated the complaining employee. Thus, not only have these employees been subjected to what, in all likelihood, would be considered to be sexual harassment by most courts, but they have been retaliated against for complaining to management about the alleged harassment.
As a Maryland employment attorney based in Baltimore County, I know that one of the most common telephone calls that plaintiffs’ employment attorneys receive is from a distraught, frustrated woman (or, once in a while, a man) who believes she has been sexually harassed and wants to pursue legal action against her employer. In evaluating such cases, experienced employment lawyers ask some of the following basic questions:
a) Was this a one-time incident or a pattern of inappropriate conduct? Unless a one-time incident is severe, such as a sexual assault, most courts will not allow a sexual harassment claim to proceed to trial unless there has been a pattern of incidents, whether verbal harassment or physical or a combination. Obviously, the more incidents, the stronger the claim.
b) Did the plaintiff complain to her supervisor or manager or the human resources department about the sexual harassment, and if so, what was done in response to the complaint? If the plaintiff failed to complain about the harassment, then the employer will usually not be held liable. Similarly, if the plaintiff complained and the employer disciplined the harasser, and the harassment stopped, then the employer would likely not be held liable. On the other hand, if the plaintiff complained, and the harassment continued, or the plaintiff was retaliated against, then the plaintiff may have a strong case.