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Can I Sue My Job For Sexual Harassment By Customers Or Coworkers? Best Employment Lawyer Answer!

| Sep 29, 2015 | Sexual Harassment |

Best Ohio Sexual Harassment Lawyer Reply: What should I do if I am being sexually harassed at work by my co-workers? Does my boss have to stop customers from making sex comments to me? What type of attorney do I need to sue for sexual harassment at work?

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When talking about sexual harassment at work, most employees immediately think about a boss or manager groping, touching or asking for sexual favors from a subordinate with the threat, either direct or implied, that the refusal to give into the sex demands of the boss or manager would lead to the e/e being fired, demoted or not getting certain job benefits. Employment Law Attorneys call this quid pro quo sexual harassment. Quid pro quo simply means this for that. But, sexual harassment can also arise from what employment law lawyers call sexually hostile work environment. And, what many workers do not realize is that unlike quid pro quo sexual harassment, sexually hostile work environment claims do not have to originate from the sexually harassing conduct of a boss, manager or supervisor. No, instead, your employer can be liable for allowing a sexually hostile environment to exist even if it is being created by fellow co-workers or even customers.

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Let’s step back for a second and look at what constitutes a hostile work environment claim. In Harris v. Forklift Systems, Inc., the United States Supreme Court explained that sexually hostile work environment claims have to be based on more than a few inappropriate comments but can be based on something less grouping, touching and requests for sex:

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-2(a)(1). As we made clear in Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986), this language “is not limited to `economic’ or `tangible’ discrimination. The phrase `terms, conditions, or privileges of employment’ evinces a congressional intent `to strike at the entire spectrum of disparate treatment of men and women’ in employment,” which includes requiring people to work in a discriminatorily hostile or abusive environment. Id., at 64, quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, 707, n. 13 (1978) (some internal quotation marks omitted). When the workplace is permeated with “discriminatory intimidation, ridicule, and insult,” 477 U. S., at 65, that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” id., at 67 (internal brackets and quotation marks omitted), Title VII is violated.

This standard, which we reaffirm today, takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible psychological injury. As we pointed out in Meritor, “mere utterance of an . . . epithet which engenders offensive feelings in a employee,” ibid. (internal quotation marks omitted) does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.

But Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin offends Title VII’s broad rule of workplace equality. The appalling conduct alleged in Meritor, and the reference in that case to environments “`so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers,’“ id., at 66, quoting Rogers v. EEOC, 454 F. 2d 234, 238 (CA5 1971), cert. denied, 406 U. S. 957 (1972), merely present some especially egregious examples of harassment. They do not mark the boundary of what is actionable.

Okay, as you can see there is no bright line as to what exact conduct creates a hostile work environment.

Now, let’s turn to whose actions can create the sexually hostile work environment. Many employers will argue that they cannot be liable if the offending conduct was not done by a manager, boss or other supervisor. This is not true. Your employer can be liable for conduct of other if it knew or should have known about the sexually harassing conduct and let it persist.

A case decided this week by the United States District Court for the Northern District of California,  Bohnert v. Roman Catholic Archbishop Of San Francisco is a good example. Kimberly Bohnert was employed as a biology teacher at Junipero Serra High School, which was an all-boys college preparatory school that was wholly governed and controlled by the Archdiocese. First, there was “offensive and sexually violent graffiti” directed at Bohnert in a school bathroom. Then there was a series of tweets on Twitter by two students that made sexual comments about Bohnert. Next, Bohnert and two other teachers were the subject of “upskirt” photos and videos being circulated about them. Thereafter, sexually graphic and violent “memes” were posted on the internet of Bohnert and other teachers. Sexual carvings were found on desks. The school investigated, sent letters home, had assemblies to address the conduct, suspended certain students, had meetings and presentations for parents and students. Bohnert took a leave of absence starting on May 17, 2013 and extending through the 2013-14 school year. After her return, there was evidence that such sexually inappropriate conduct continued at her school and other Archdiocese schools, although not directly involving Bohnert.

As a defense, the employer-school argued that Bohnert’s hostile work environment claims should be dismissed because its “responses to the conduct reported were prompt and reasonably likely to stop harassment” and “because Plaintiff cannot show that Defendant failed to establish anti-harassment

The trial court denied the employer motion for summary judgment and let the claims proceed:

An employer may be liable for not only its own actions, but also for the actions of others that it failed to prevent. The Ninth Circuit has held “that employers may be liable for failing to prevent or remedy sexual harassment among co-workers [or third parties] of which management-level employees knew or in the exercise of reasonable care should have known.” Folkerson v. Circus Circus Enterprises, Inc., 107 F.3d 754 (9th Cir. 1997). This may occur when an employer “either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct.” …

Bohnert submitted evidence of a pattern of related acts of sexual harassment at Serra (and at other Archdiocesan schools) over a period of several years.

Taking a photo or video under a person’s clothing is a crime. See CAL. PENAL CODE § 647(j). It is a serious invasion of privacy and highly upsetting to a reasonble person. The circulation of such photos or videos by means of technology exacerbates an already demeaning and offensive action. A teacher’s ability to do her job properly is undoubtedly impeded by concerns about being further victimized by an upskirt photo or video, students’ lack of respect for her, and the need to monitor social media and other outlets to ensure that students are not posting offensive photos or videos. Similarly, demeaning graffiti and comments on social media are indicative of a hostile environment and are disturbing not only in their original creation, but in their continued dissemination. There is a triable issue of fact that the conduct by Serra students was ongoing, related, and both objectively and subjectively hostile.

Bohnert has submitted substantial evidence, most of it unrebutted, that the school acquiesced in the hostile behavior of its students by failing to properly take corrective action after every reported incident of harassment and even by fostering an environment that was disrespectful to women. She presents alternative theories of Title VII violations: that the school failed to adequately address the harassment once it was reported, and that it failed to prevent the harassment in the first place. … She has presented sufficient evidence to survive summary judgment on both theories.

Critically, the trial court made the point that an employer cannot respond to acts of sexual harassment by going through the motions or just take some ineffective actions in response:

First, the undisputed evidence indicates that for many of the alleged incidents of harassment, the school was never able to determine which students were guilty. After the sexually offensive graffiti was found in the bathroom, the Archdiocese did not discover who created the graffiti, and there is little evidence that it seriously attempted to. Instead, Serra administrators simply asked the student body to come forward with any relevant information. The school did not mention the sexual nature of the graffiti to students or address the disrespect for female teachers that it reflected. It did not find out who authored the graffiti or the later meme. Indeed, each time a harassing act came to light, it was reported by a teacher or student, not independently discovered by the school. In arguing that there were only a few isolated incidents of harassment that were promptly remediated at Serra, there is a reasonable inference that the Archdiocese is attempting to use Serra’s past failures to discover the perpetrator to shield itself.

Second, … [the] May 2013 upskirt investigation revealed strong evidence that a longer video of Bohnert and other photos were also circulating. However, the school never found anything more than the seconds-long video of Bohnert that was included in the police report. The Archdiocese had full-time IT staff at Serra, but there is no evidence that it used them to proactively help control students’ repeated use of offensive social media. Students who admitted to viewing upskirt photos and deleting them in fear of apprehension were not punished. In addition, the police report indicated that there was a “challenge” among students to take upskirt videos. Even though the Archdiocese had experienced multiple instances of upskirt photos and had ample reason to believe it may be a widespread practice among students, it implemented no policy to address it. Indeed, an upskirt video was taken as recently as May 2015.

Third, Bohnert submitted evidence that the Archdiocese did not follow its own internal policies at Serra in investigating the harassment that was directed at her and at others. …

Fourth, there is evidence that Serra faculty and administrators deleted, or instructed students to delete, incriminating photos. They did so while the police investigation was ongoing, and despite knowing that photos had apparently been sent to a significant number of students. The fact that Serra administrators later claimed that they did not delete the photos, or could not remember doing so, further allows a reasonable inference that they deleted these photos in order to minimize the fallout of the incident.

Fifth, Bohnert submitted evidence that Serra’s formations related to sexual harassment and gender respect were ridiculed and criticized as ineffective. Several Serra administrators admitted as much. She also provided evidence that the school’s responses to harassing conduct before the May 2013 upskirt incident, such as the graffiti that was targeted at her, were criticized by faculty. And there is compelling evidence of related harassment, including upskirt photos or videos, that occurred after the May 2013 upskirt incident. …

In all, the Archdiocese’s actions in response to each successive act of harassment fell short in many ways. The school (and the Archbishop’s office) did not appear to learn from, or respond to, each instance of harassing conduct or to prevent similar occurrences in the future. Instead, the evidence indicates that students believed that they could get … The evidence raises a triable issue of fact that the Archdiocese failed to take proper corrective action and acquiesced in creating a hostile work environment for Bohnert and other females. The Archdiocese’s motion for summary judgment on Bohnert’s hostile work environment and failure to prevent harassment claims is denied.

So what is the take away here? Sexual harassment claims can stand against your employer when the sexually harassing conduct comes from other people than bosses, manager, and advisors. When an employer learns of such conduct or should learn of it, the employer must take effective steps to stop it.

Sexual harassment is unlawful under Title VII of the Civil Rights Act of 1964 and similar Ohio laws. Sexual harassment is a form of gender discrimination. If you feel that you are being sexually harassed or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney at (216) 291-4744 to schedule a free and confidential consultation. At The Spitz Law Firm, you will meet with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Sexual harrassment is a form of gender discrimination, and employers should be held accountable if they discriminate against female workers in any fashion – but particularly for sexual harrassment. It does not matter if you have been wrongfully fired or are still employed, there is no reason to wait to find out what your legal rights are and how to protect yourself from sexual harassment and gender discrimination.

Disclaimer:

The materials available at the top of this page and at this gender discrimination, wrongful termination, and sex harassment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “what should I do …”, “I’m being sexually harassed …” “my supervisor grabbed my…”, “my boss is touching…,” “I’ve been wrongfully terminated,” or “how do I …”, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice with respect to sexual harassment/hostile work environment questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.