By Chuck Douglas – New Hampshire Sexual Harassment Lawyer

The law makes a distinction between sexual harassment by co-workers and sexual harassment by a supervisor. A company that has a supervisor who is sexually harassing an employee is strictly liable for the supervisor’s conduct. That is not the case if the harasser is only a co-worker.

The gray areas involve co-workers who have titles or job responsibilities where they can change your hours, assignments or duties but can’t hire or fire you. Everyone agrees a person who can hire and fire an employee is a supervisor, but once you get beyond that, the various Federal Circuit Appeals Courts are in disagreement.

That question will be answered because the United States Supreme Court has accepted a case from the 7th Circuit Court of Appeals in the mid-west to consider exactly what the term “supervisor” includes or doesn’t include in the work place. Because this is an uncertain area of the law, you need to contact a firm who represents employees and, therefore, understands the various ins and outs of the court decisions that may be relevant to your case. We represent employees in sexual harassment cases and recently successfully mediated a case against a major employer that argued that the supervisor was not a supervisor but merely a co-worker.

If you think you have been sexually harassed, please call our office at 1-800-240-1988 or fill out our online contact form.

An employer may face liability for sexual harassment to which an employee is subjected after hours and outside the workplace setting.  In the New Hampshire Federal Court case of McGuinn-Rowe v. Foster’s Daily Democrat, the female employee, an account representative, alleged that a management-level employee leaned against her at a bar and, later the same night, rubbed himself against her.

The employer argued to the Court that it should not be held liable for the conduct occurring at the bar because “it occurred away from the workplace and outside normal working hours.”  The Court disagreed.  First, the Court said that the incident at the bar was “relevant to the issue of whether the [employee] experienced a hostile environment at work.”  The Court found that the harassment of an employee both at work and at her home when she was off-duty supported an actionable claim for sexual harassment.  The New Hampshire Federal Court also held that the employer could be held liable for the harassment if it knew or should have known about the harassment’s occurrence and failed to take appropriate steps to halt it, regardless of whether the harassment occurred on or off work premises.

So, just because a boorish supervisor or co-employee harasses you away from the workplace rather than at the workplace does not mean that the employer is off the hook.  If you are a victim of such harassment, be sure to notify your employer promptly so that the employer has the opportunity to meet its obligation to undertake corrective action.  You should also consult an experienced employment attorney to gain a full understanding of your rights.

A physician running a clinic with approximately 25 employees apparently enjoyed telling dirty jokes and commenting on female body parts during the work day. One of the staff physicians, who was pregnant, did not appreciate the doctor’s continual obsession with breasts, breast feeding, etc. The doctor called himself a shock jock and, therefore, assumed because everyone involved was in the medical profession that somehow the normal requirements for dealing with human anatomy allowed him wider verbal leeway. Not so said a Federal Appeals Court.

On the other hand, a woman who was transferred from an environment within a company where the men were constantly streaming sexual comments and threats at her ended up in a department where the rhetoric was dramatically different and not offensive. Unfortunately, she waited too long to complain about the prior department she worked in and she missed the time limits under the law. The comments she did timely complain about were one employee talking on the phone about “chickies” and a sleepover with a woman. The court held that those comments were too trivial to support a hostile work environment sexual harassment case.

That is why you need to contact employment lawyers who represent employees if you are in an offensive environment. If you are unsure of your rights, feel free to contact us.

From 1990 to 2009, the percentage of sexual harassment claims filed by men has doubled from 8% to 16% of all claims filed with the federal Equal Employment Opportunity Commission (EEOC).

Women still file the overwhelming majority of sexual harassment claims with the EEOC. “It’s certainly possible that there’s more sexual harassment of men going on, but it could just be that more men are coming forward and complaining about it” said one EEOC staff lawyer.

While some cases allege harassment by female supervisors or co-workers, most charges involve men harassing other men. Sometimes it’s unwelcome romantic advances. Other times, men are picked on because of their sexual orientation, perceived as being gay or not considered masculine enough for the work setting. “If you don’t fit the masculine stereotype or are viewed as effeminate, you get picked on in a sexual way to demean you” said an employment consultant.

Our employment law firm still sees most cases involving women but likewise has more cases involving men than we did just a few years ago.

What if you worked in a very vulgar work setting? In a case decided by the 11th Circuit Federal Court of Appeals a woman sued because she worked on a sales floor of a transportation and shipping company in Alabama with 6 crude male co-workers. There were no large barriers between the work cubicles so Ms. Reeves could daily hear the language of her male co-workers as they shouted gender-specific vulgarities aimed at women. The company’s defense was that old standby that “that’s just the way things are” but the woman was able to show disparate treatment under the law. The employer’s problem was that she had to endure pervasive daily references that were gender specific. It was not a stray or occasional swear word but a steady daily drum beat directed at females by the male sales force. The company ignored her complaints and lost the case because of the hostile work environment it allow to exist in the workplace.

Employees and employers need to be aware of the threat of sexting in the workplace. Some people call it “textual harassment.” The problem is that offensive jokes or sexy messages may not be received well by the recipient and they can complain about textual harassment. It is another form of sexual harassment. Employees and employers should make sure that sexually explicit messages, videos, photos, etc. should not be posted or circulated in the workplace because sometime, some where, someone will be offended.

In defending sexual harassment cases, employers try to use the conduct of the complaining employee against her in a sexual harassment or hostile work environment claim.  Recently, the Massachusetts Supreme Judicial Court faced the interesting question in a sexual harassment case of whether certain conduct and comments by a complaining female employee can be used against her.  Kimberly Dahms had filed a sexual harassment charge against a company’s Chief Financial Officer for creating a hostile work environment.  The gist of her claim was that the CFO retaliated and undermined her position at work after she refused to date him.

In a hostile work environment claim, the employee must show that she was offended by the work environment.  The employer claimed that Ms. Dahms was not “offended” because she was a willing participant in the sexualization of her work environment.  The employer relied on that Ms. Dahms had apparently worn provocative clothing, told sexual and crude jokes at a company party and shared her sexual preferences to co-workers.

The Court said that evidence of Ms. Dahms language, apparel and conduct was evidence of whether she was actually offended by her work environment or invited the CFO’s attention.  While it was proper for the jury to consider Ms. Dahm’s behavior in evaluating her hostile work place environment claim, evidence of her willing participation in sexualized behavior was admissible on whether she was in fact offended by the work environment.

The decision is a reminder that employers will try to use a female employee’s conduct against her in defending a sexual harassment claim for a hostile work environment.  The internet and various blogs and social network postings by female employees are being used by the employer’s lawyers to find something negative or sexual about a female employee.  Thus, your conduct, attire and joke telling at the office is a factor to consider as it may affect a sexual harassment case.