Yes, courts have held that an employer may be found liable for the harassing conduct of its customers. The focus of the inquiry in a hostile work environment claim, as the name suggests, is on whether the workplace is replete with discriminatory intimidation, ridicule, and insult.  Employers may be held liable in these circumstances if they do not remedy or prevent the hostile work environment about which they knew, or should have known.

Several different types of remedies are available under Title VII of the 1964 Civil Rights Act if you prevail in your sexual harassment claim, including:

• Back pay – the lost pay and benefits you would have received absent the adverse personnel action (e.g., salary from the date of termination or demotion until the date of the trial);
• Compensatory damages – damages to compensate emotional distress and reputational harm that you suffered because of the sexual harassment;
• Punitive damages – damages to punish the company if it acted with malice or reckless indifference;
• Lost future earnings;
• Equitable relief, such as an order reinstating you; and/or
• Attorney’s fee and litigation expenses

Importantly, different federal, state, and local laws may apply to your case and may allow different types and amounts of damages (Title VII, for example, has a cap on the amount of compensatory and punitive damages you can recover).

A hostile work environment is another form of sexual harassment.  A hostile work environment is one filled with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

Yes, a single act of severe harassment can be actionable in certain, limited circumstances.  Examples include:

• female supervisor grabbed waiter’s penis through his pockets;
• use of racial epithet such as “ni[**]er”;
• deliberate and unwanted touching of plaintiff’s intimate body parts (for example, where a supervisor shoved employee’s face against his crotch); and
• an extended barrage of obscene verbal abuse.

Quid pro quo harassment is a type of sexual harassment.  “Quid pro quo” means “this for that” or “something for something” and is a particularly repulsive form of harassment.  It occurs when a supervisor either conditions a job benefit on sexual favors, or punishes the employee for refusing to do so.

It can take many forms and one example is for a supervisor to tell a female employee that the only way she will get (or keep) the job is to have sex with the supervisor.

Quid pro quo harassment can also happen in less stark terms. For example, in the corporate setting a senior manager may dole out plum accounts or assignments, or even promotions, based on whether the female employee agrees to go out to dinner with him, on a date, etc.

It is illegal to harass an employee because of that person’s sex.  According to the Equal Employment Opportunity Commission (EEOC), this unlawful sexual harassment includes unwanted sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

Mere teasing or isolated comments/incidents that are relatively minor do not rise to the level of illegal sexual harassment.

Harassment becomes unlawful when the conduct and/or statements become so frequent or severe that it creates a hostile work environment or results in an adverse employment action (for example, firing, demoting, or suspending the victim).

Yes, the employer may automatically be liable if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

If a supervisor creates a hostile work environment for an employee (with no adverse action like being fired), then the employer can prevail only if it can prove:

• it reasonably tried to prevent and promptly correct the harassing behavior; and
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer, such as reporting the harassment to the employer.

If a non-supervisory employee harasses another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.

A supervisor is an employee whom the employer has empowered to take tangible employment actions against the victim; that is, to make a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.

Combating Sexual Harassment

• If there are witnesses to the harassment, work with an attorney to get signed statements corroborating that the harassment took place.
• If there are text messages or emails evidencing harassment, work with an attorney to properly preserve this proof so that it will be admissible at trial.
• Consult the company’s anti-harassment policy and report the harassment.
• Document any retaliation that you experience for reporting the harassment.
• If you are a federal government employee or a state or local (city, county) government employee, different complaint filing procedures may apply.  The EEOC’s website has a handy online assessment tool that provides information on how to file a complaint.
• Be cautious in gathering evidence.  For example, in some states, surreptitious recording is unlawful.
• Document the harm you suffer because of the harassment, including the impact on your personal and professional relationships.
• Talk with an experienced employment attorney to discuss your legal rights and options, including applicable deadlines for filing an EEOC charge of discrimination.

Title VII requires plaintiffs to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged act of retaliation.  42 U.S.C. § 2000e-5(e)(1).  The limitations period expands to 300 days where the plaintiff has filed a charge with a state or local agency that is authorized to grant or seek relief from the challenged practice.  Federal employees seeking to remedy discrimination, harassment, or retaliation must contact an EEO counselor to initiate a complaint 45 days from the day the discrimination occurred.

The anti-retaliation provision of Title VII proscribes not only tangible employment actions, such as termination of employment, but also any act that would “have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 52, 68 (2006).  Note that retaliatory harassment does not require a showing that the harassment was severe or pervasive.

Yes, opposing or reporting unlawful employment actions, including sexual harassment, is protected under Title VII.  Indeed, employees are protected for reporting employment actions that are not unlawful but that an employee reasonably believes to be unlawful. And employees are protected against retaliation for reporting discrimination during an internal investigation.

Affirmative Defense in a Sexual Harassment Case

The employer is automatically liable and has no defense if a supervisor’s harassment of an employee causes an adverse action such as termination, lost wages, or a suspension.

However, an employer does have a defense (known as a Faragher/Ellerth defense) if a supervisor creates a hostile work environment for an employee (but no adverse action is taken against the employee, like being fired).  Under this scenario, the employer may prevail if it proves:

• it reasonably tried to prevent and promptly correct the harassing behavior; and
• the employee unreasonably failed to take advantage of any preventive or corrective opportunities offered by the employer

Finally, if the situation involves a co-worker (non-supervisory employee) harassing another employee, then the employer will be liable for the harassment if the employer knew, or should have known, about the hostile work environment and failed to promptly correct it.