Sexual Harassment

Rob Wiley: My name is Rob Wiley and today I'm speaking with Austin employment lawyer Colin Walsh about sexual harassment. So, Mr. Walsh, sexual harassment, we all know it still happens, in the work place. When does something qualify as sexual harassment?

Colin Walsh: Something that qualifies as sexual harassment when it's unwelcome and severe.

Rob Wiley: And also I guess when it's because of the person's gender or because of sex.

Colin Walsh: Right. One misconception is that it only has to do with sex but gender harassment would be the same thing and covered by the same laws.

Rob Wiley: Now I've heard of quid quo pro sexual harassment. What does that mean?

Colin Walsh: That is where an employer or supervisor asks a employee of a different sex to provide something to him in exchange for an employment benefit. So for example where you'll see it is a supervisor will say, female employee, I'd like to take you out on a date and if you go out with me then I will put you at the top of the list for a promotion.

Rob Wiley: And it can also be threatening, right? The fact that the promotion is up or if you don't go out with me you're not gonna have, a shot at that promotion and, and those things can be, can sometimes be spoken or implied.

Colin Walsh: Absolutely. They can get, they can, there is a wide spectrum of things that can be quid pro quo.

Rob Wiley: And then the other kind of sexual harassment that you sometimes hear about is something called a hostile work environment. What is a hostile work environment?

Colin Walsh: Well that is where the environment is essentially hostile because of your sexual harassment where you are treated badly and harassed by other employees and it is severe and pervasive and it's unwelcome.

Rob Wiley: And a lot of times it takes the form of pornography in the work place that could be very inappropriate, sexual, condescending treatment of women. Work place in which male employees, you know, are physical with women in an inappropriate manner, and all of that obviously, would be severe or pervasive and qualify as a hostile work environment. Now as I understand it, one thing that is different about sexual harassment is that since 1998 there's been a requirement that if a company has a written policy, an employee needs to avail themselves of that policy. So if it says we prohibit sexual harassment and if you think you're being sexually harassed you need to talk to your supervisor or to Human Resources. What are some things that an employee should take into consideration when there's a policy like that about sexual harassment in the work place?

Colin Walsh: Well, what they should do is they should definitely contact an employment lawyer. If you are thinking of complaining to HR or to your supervisor or to anyone at your employer, you should contact an employment attorney. They're going to be able to help you, craft that complaint and even sometimes make that complaint on your behalf and the benefit there is that you know it's being made and you know that your rights are being protected so there is this safe harbor provision, from the Supreme Court that basically does say if you don't complain then the employer had no way to know and fix the sexual harassment that you are later complaining of so I do strongly recommend employment lawyers help you craft that first complaint.

Rob Wiley: Yeah. If you're being sexually harassed, you can't suffer in silence. You really need to take action and in an ideal world, when you went to Human Resources they would investigate, they would take prompt remedial action but we know that all too often what really happens is that there is retaliation against the complaining employee and having an attorney represent you is one way to prevent that. Now you said at the beginning, that one aspect of quid pro quo sexual harassment was if a supervisor made a promise or a threat to someone of the opposite sex but could you also have a situation in which a person was sexually harassing someone of the same sex.

Colin Walsh: Oh, absolutely. Harassing anybody because of their sex is going to be sexual harassment and it's prohibited by the law.

Rob Wiley: So even male on male or female on female sexual harassment, that would be prohibited?

Colin Walsh: Absolutely. Without question that kind of harassment is prohibited.

Rob Wiley: Well then let me ask you another question 'cause this is kind of the reverse of what you typically hear about. What if you had a female employee who was sexually harassing a male employee? Could that be actionable sexual harassment?

Colin Walsh: Yes. That could also be actionable sexual harassment. Again the law doesn't distinguish which sexes can be harassed appropriately. It prohibits all sexual harassment and that includes harassment from females towards males.

Rob Wiley: And as I understand it, there are deadlines that you have to adhere to in order to bring a legal claim of sexual harassment. Is that correct?

Colin Walsh: That's correct. Uh, there are deadlines and they are very short in sexual harassment cases. 180 days from the date the harassment occurred is when you have to file a charge of discrimination if you want to preserve your state law claims. You have 300 days to preserve your federal law claims.

Rob Wiley: And this is a problem that sometimes we see. You know, the first time someone gets sexually harassed, they hope that it's just a onetime thing or it's not going to continue. And they don't bring their claim or want to take action until a period of time has passed. There are some ways that we as lawyers can try and get around the short deadlines, but the best thing to do is obviously to talk to an employment lawyer as soon as possible because those deadlines can have real consequences on someone's ability to bring a case. Thank you Colin.

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