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.
If there is a lesson to be learned, it is that even today, in 2008, many employers do not know how to effectively follow their own sexual harassment policies. And that creates even bigger problems for employers, because retaliation claims are often more successful than the underlying sexual harassment complaint.
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.
c) Was this purely verbal harassment, or was touching involved? Obviously, the worse the language and the sexual comments, the better the legal case. When inappropriate touching is involved, the case becomes much stronger, especially if there is repeated unwelcome touching.
d) Is the plaintiff still working for the employer, or has she quit or been fired? When a plaintiff quits her job, her legal claim for damages may be diminished; on the other hand, if the plaintiff stays at the job, the employer will argue that any harassment must not have been that severe. The strongest legal case is usually presented where the employer terminates the plaintiff for complaining about the sexual harassment (or makes her job so miserable that she had no choice but to quit).
While none of these questions is the “be all and end all” to any sexual harassment claim, the answers to these basic questions help an employment attorney determine the strength and potential success of any sexual harassment claim. If you would like an experienced attorney to evaluate your employment situation and advise you about whether you make have a viable legal claim, please feel free to contact me at anytime.