Sexual Harassment In Employment Discrimination

Sexual harassment is unwelcome or unwanted sexual conduct that is either very serious or occurs frequently.

• The harasser may be another employee, a supervisor, the company owner or even a customer.
• The harasser may be male or female.
• The sexual conduct can be verbal, physical, in writing, or pictures. Illegal sexual harassment creates a hostile or intimidating work place that interferes with an employee's job performance. 

The EEOC issued guidelines declaring sexual harassment a violation of Section 703 of Title VII, establishing criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment, defining the circumstances under which an employer may be held liable, and suggesting affirmative steps an employer should take to prevent sexual harassment.

• The EEOC has applied the Guidelines in its enforcement litigation, and many lower courts have relied on the Guidelines.

The EEOC's Policy Guidance on Current Issues of Sexual Harassment include two types of sexual harassment: "quid pro quo" and "hostile environment."

• "Unwelcome" sexual conduct constitutes sexual harassment when "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment," 29 C.F.R § 1604.11 (a) (1).
• "Quid pro quo harassment" occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual," 29 C.F.R § 1604.11(a)(2).¹ 29 C.F.R. § 1604.11(a)(3).² 
• The Supreme Court's decision in Vinson established that both types of sexual harassment are actionable under section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), as forms of sex discrimination.
• Although "quid pro quo" and "hostile environment" harassment are theoretically distinct claims, the line between the two is not always clear and the two forms of harassment often occur together.

The issue of whether sexual harassment violates Title VII reached the Supreme Court in 1986 in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 40 EPD ¶ 36,159 (1986). The Court affirmed the basic premises of the Guidelines as well as the EEOC's definition.

After Vinson developing law and guidance included: 

• determining whether sexual conduct is "unwelcome";
• evaluating evidence of harassment;
• determining whether a work environment is sexually "hostile";
• holding employers liable for sexual harassment by supervisors; and
• evaluating preventive and remedial action taken in response to claims of sexual harassment.

Louisiana Law, LA Rev Stat 23:332 prohibits intentional employment discrimination. 

• Title 23 Labor and workers compensation - RS 23:332 Intentional discrimination in employment 

• Sex-based discrimination includes sexual harassment under LA Rev. Stat. Sec. 23:332 

• A Louisiana state court affirmed a ruling in favor of two employees who alleged that repeated harassment by company executives created a hostile work environment (Bergeron v. Smith & Assocs., 986 So.2d 258 (La. App. 1 Cir. 2008))

Retaliation claims for other types of discrimination complaints are not covered under the Louisiana Employment Discrimination Law. Under La. Rev. Stat. § 23:967 General Whistleblower Protection Law an employee may not be discharged (or discriminated against) in retaliation for performing, in good faith, the following activities:

• Disclosing (or threatening to disclose) a workplace act or practice that violates state law;

• Providing information or testimony in a public investigation, hearing, or inquiry into any violation of the law;

• Refusing to participate in (or objecting to) an illegal employment act;

• To be protected under this statute, the employee must first inform the employer of the violation. An employee is not protected if he goes directly to a governmental agency without first advising the employer. Also, an employee must be certain that the illegal conduct actually happened; a reasonable, good faith belief will not protect an employee if no violation actually occurred. 

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, there are exceptions to the general rule; the Louisiana whistleblower protection statute. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: health care employees, insurer employees, labor investigations & proceedings, and workers' compensation.

In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

Laws like Title VII of the Civil Rights Act of 1964 (Title VII) require you to file a charge of discrimination with the Equal Opportunity Employment Commission (EEOC) before you can file a discrimination lawsuit against your employer. An individual alleging a violation of Title VII must file a charge with the EEOC before you can file a discrimination claim in federal court. 

1. To File an Equal Opportunity Employment Commission (EEOC) Charge:

   • Within 180 days of the alleged unlawful compensation practice.

   • 15 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

2. To File with the Louisiana Commission on Human Rights (LCHR):

   • Within 180 days of the alleged unlawful compensation practice

   • 20 or more employees who have worked for the employer for at least twenty calendar weeks (in this year or last).

3. To File in a State Court under Louisiana State Law:

   • You may file a claim under state law without having first gone to either the LCHR or EEOC.

   • Generally, to preserve your claim under state law based on your state discrimination claims, you must file within 1-year or 360 days of the date you believe you were discriminated against. 

   • If you file your discrimination claim with the LCHR or EEOC within 300 days of the discriminatory treatment, then you have an additional 6-month extension from the 1-year period to file your claim in Louisiana state court (meaning you have 18 total months).

   • A case filed in state court using federal law may be “removed” to federal court by the employer because it involves a federal statute such as Title VII, GINA, ADEA, and ADA or because the employer is based in another state.

4. To File a Discrimination Claim in Federal Court:

   • To preserve your claim under federal law, you must cross-file with the EEOC or LCHR within 300 days of the date you believe you were discriminated against.

   • A federal employment discrimination case cannot be filed in court without first going to the EEOC or LCHR, as discussed above, and having the EEOC or LCHR dismiss your claim.

   • This process is called “exhaustion” of your administrative remedy. The EEOC or LCHR must first issue the document known as “Dismissal and Notice of Rights” or “Notice of Right to Sue” (Form 161) before you can file a case based upon your federal claim.

   • A lawsuit based on your federal discrimination claim must be filed in federal or state court within 90 days of the date you receive the notice. Be sure to mark down that date when you receive the notice.