Continued from Part 1

How can I tell if this is a sexually hostile work environment, or just a lousy place to work?

It can be extremely difficult to tell the difference between

• an "unpleasant" work environment;
• a genuinely abusive work environment where the abuse is not based on sex;
• a sexually harassing environment that is not "bad" enough to give rise to a legal claim; and
• a legally actionable sexually hostile work environment. 

To prevail in a legal action based on a sexually hostile environment claim, the employee must usually establish a "pattern of ongoing and persistent harassment,” or a sufficiently severe instance of harassment that alters the conditions of employment in some significant way.  To determine whether an environment is sufficiently hostile or abusive enough to violate the law, the court will look at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating (versus being a "mere offensive utterance,”) and whether it unreasonably interferes with an employee's work performance.  

Not surprisingly, there are still many courts (and juries) who are inclined to think that a victim of a sexually hostile environment is "making a bigger deal" out of some incidents than he or she should, and reject the legal claim on that basis.  

Your employer can be liable for the acts of your immediate supervisor or for the acts of customers.

Because a supervisor's employment decision can only be made by virtue of the power the employer has vested in him or her, that decision is, for legal purposes, the act of the employer.  An employer can also be liable for a hostile environment caused by the plaintiff’s supervisor. Employer responsibility for co-worker harassment is evaluated under a "negligence" standard.  This means that liability is imposed where the company knew or should have known of the harassment and failed to take prompt remedial action. 

Employers may also be held responsible for customer harassment of employees where the 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. 

Give notice of the harassing conduct to your employer.

Giving notice to your employer of the sexually harassing conduct triggers the employer's duty to take prompt corrective action that is "reasonably calculated to end the harassment."  You've given notice if you complain in accordance with your employer's internal policies, or possibly even if you've simply given clear notice of what's going on to an appropriate supervisor. 

If the employer has an anti-harassment policy and has generally exercised reasonable care to prevent and promptly correct sexually harassing behavior, your failure to follow that policy by not giving the employer the opportunity to address the problem may prevent you from later prevailing in court.  However reasonable it may seem at the time, you can't expect to keep quiet about the problem and then challenge the employer later.  If you do this, the employer can plausibly respond that you acted unreasonably in not taking immediate advantage of its internal policies and procedures designed to address these types of problems. 

What are my options beyond the workplace?

If your efforts to address sexually harassing behavior informally or through internal company channels fail, you have a range of options available to you, including recourse to state and federal anti-discrimination agencies and private lawyers.  You may also want to consult with a lawyer before you even try to address the matter internally. 

Bear in mind, however, that for many of the same reasons set forth in my post, "What To Do When You Get Fired, Part 5: Evaluate Your Options," the real-life downside consequences of taking legal action against your employer (cost, stress, risk, notoriety) may well outweigh the advantages.  On the other hand, if nobody stands up against this type of employer and supervisory misconduct, it never ends.  

While I certainly don't recommend kidnapping your boss, a la "Nine to Five," and keeping him locked up indefinitely while the workplace goes on without him, keeping your head down and hoping that the situation gets better on its own is also usually not a winning strategy. It may be time for a round of "To Quit or Not to Quit" or "Give Your Resume a Makeover" instead.  Before making any of these decisions, however, you should consult with an employment lawyer to make sure that you are basing your actions on a clear understanding of what your legal rights are in the state where you are employed.