Employment Law Update: Workplace Sexual Harassment and Sexual Assault

I’ll jump right in. I’m going to discuss workplace sexual harassment and sexual assault and outline some of the key considerations in this type of case (from the employee / plaintiff-side).

Defining Sexual Harassment

First, as sad as it is to admit, sexual harassment and even outright sexual assault are very common in the American workplace. This statement necessarily requires some definitions and further explanation. And here is where I will probably start offending some people. When I use the term sexual harassment, I am talking about actual sexual harassment. In America of 2022, many folks would argue that asking a colleague out to dinner or saying “nice dress” constitutes sexual harassment. That, of course, is bullshit. In spite of the strangely prudish social mores of 2022 America, asking someone out to dinner or giving someone a compliment on their outfit – without anything more – is not sexual harassment. I don’t care what woke celebrity on Twitter suggests otherwise. To be clear: In most instances, I think it’s inappropriate for higher ranking employees/executives to pursue romantic relationships with a subordinate employee. But, again, I said most instances. There are obviously exceptions. The point being: When I use the term sexual harassment, I am talking about true sexual harassment:

      • Overtly sexual comments or text messages.
      • Pressure to enter a romantic or sexual relationship.
      • Pressure to spend time together outside of work with clearly romantic/sexual overtones.
      • Explicitly propositioning someone.
      • Quid pro quo situations: A supervisor saying, “If you want to keep your job, then you need to sleep with me.”

This is sexual harassment. When it goes beyond that and involves unwanted physical contact, it becomes sexual assault. Again, I hate that I have to qualify virtually everything, but this is America in 2022. No, somebody giving you a high-5 is not sexual assault. No, somebody tapping you on your shoulder to get your attention is not sexual assault. Or assault at all.

Defining Sexual Assault

We all know an egregious case of sexual assault when we see it. I have handled truly devastating workplaces sexual assault cases involving rape. I have handled workplace sexual assault cases involving unwanted sexual touching. In these situations, defining the conduct as sexual assault is crystal clear. We all understand that situations like that go in the category of sexual assault. But it’s the other situations that involve unwanted physical contact that doesn’t rise to such an extreme degree. It’s those situations that people don’t understand how to categorize.

I’ll give some (very creepy) examples from the case files. Meaning these are real life. A senior partner at a law firm who has a 10+ year habit of going into women’s offices, standing behind them, leaning over them, pressing his body into them, pressing his crotch into their back or shoulder (complete with erect penis) — All under the guise of needing to show them a document and discuss that document with them. Is this sexual assault? Absolutely. 100%. Unequivocally. I have seen this sort of conduct at least 20 times, but – from my experience – it is particularly common in law, accounting, finance, and architecture.

Another example: A colleague or supervisor who insists upon a daily “hug” with lots of body contact and inappropriately placed hands. Again: I have spoken with so many women (and a handful of men) who have dealt with this exact same situation. Usually, it seems like no big deal at first. Some people are huggers. And especially if it’s a new job and the employee tends to be pretty trusting, nothing seems off. It’s basically like, “Totally cool. [Joe] likes to hug and he’s happy for me and supportive. And I really appreciate that. It makes me feel really welcome.” It quickly morphs from that into Joe asking for [demanding] his daily hug and the employee – let’s call her Sara – starting to feel uncomfortable. After ten days of this, Sara is thinking to herself, “Am I imagining things, or is Joe putting his hands on my waist? Did he kind of grab my butt? Is he just super friendly and I’m a bad person who doesn’t trust anyone? I really need this job. I don’t know what I’m going to do. I have this overwhelming sense of dread every day when I go into work. I feel like I’m going to throw up. Do I tell him to stop? Do I say this makes me uncomfortable? What if I tell him that and it turns out that he’s just a really nice, loving person and I’m just a defective human being and am taking this the completely wrong way?” To be clear: No, it’s not you. It’s Jim. It’s wrong. It’s creepy. And it is – in fact – assault. Defending on how far it goes, it could be sexual assault.

About 200 people are about to contact my firm and say that it feels like I’m telling their story and know exactly how they feel. Why? Because this sort of situation is (a) completely wrong and (b) (unfortunately) very common.

Applicable Legal Framework

To be clear: Both workplace sexual harassment and workplace sexual assault are morally wrong and legally actionable. Meaning, yes, if you truly were sexually harassed or sexually assaulted at work, then you may have a legal claim against the company. But everything will hinge on the specific facts of your situation. And depending on where your situation falls along the continuum (sexual harassment vs. sexual assault), you might have vastly different legal claims (or both types). You might have a claim under federal law Title VII (which prohibits gender discrimination and quid pro quo sexual harassment among other things) or a common law claim for negligence (against your employer). Beyond this, there are numerous considerations regarding size of the employer, relevant state law, punitive damages, and applicable insurance coverage.

These are often complex, high-stakes, emotionally intense situations. But there is help. There are many talented lawyers (who are also good human beings) and who work in this space. If you have experienced anything like the situations described above, you should speak with an attorney about your rights. Most lawyers who work in this specific space are not afraid of big companies or big law firms and will stand up for you.

Jonathan Pollard

Jonathan Pollard is an employment and competition lawyer. He is the founder of Pollard PLLC, a litigation law firm based in Fort Lauderdale, Florida. Pollard and his colleagues routinely litigate high-stakes employment cases. Pollard has appeared in or on The New York Times, NPR, PBS NewsHour, The New York Post, Bloomberg, The Guardian, and more. His office can be reached at 954-332-2380.