A Guide for Survivors of Workplace Sexual Assault

Over the past several years, sexual harassment and assault — particularly sexual harassment and assault in the workplace — have been thrust into the national spotlight like never before. As major industries and institutions have been rocked by sexual misconduct scandals, the American public has been forced to confront painful topics that, until recently, largely were considered taboo. Even with this widespread and growing awareness of the problem, however, sexual misconduct still occurs disturbingly frequently. Below, we will outline what sexual assault is, what to do if you become a victim of it, and legal avenues survivors can take to seek redress. 

If you have any questions about any of the topics presented herein, please contact a Maryland sexual harassment lawyer. 

What Is Sexual Assault? 

According to RAINN, the nation’s largest anti-sexual violence organization, sexual assault refers to “sexual contact or behavior that occurs without the explicit consent of the victim.” Some common forms of sexual assault include: 

• Rape and attempted rape
• Fondling or other unwanted sexual touching
• Forcing the victim to perform sexual acts on the perpetrator

The defining feature of sexual assault is that it is committed by force and without the victim’s consent. In this context, “force” does not necessarily mean physical force, although it can in many cases. Often, perpetrators of sexual assault use threats of violence to coerce the victim to comply or threaten to withhold basic necessities from the victim, such as food and shelter. In other cases, the perpetrator may render the victim unable to consent, such as by sedating them with drugs or alcohol. 

Assault vs. Harassment

The terms “sexual assault” and “sexual harassment” are often used interchangeably, but there are important differences between them. Sexual assault, as defined above, is characterized by physical contact between the perpetrator and the victim. Sexual harassment, meanwhile, is broader and refers generally to any kind of unwanted or unwelcome sexual attention. Examples of sexual harassment include: 

• Requests for sexual favors
• Unwanted sexual advances
• Making lewd comments or gestures
• Discussing topics of a sexual nature
• Exposing oneself to others
• Sharing sexually explicit photos with others 

Sexual harassment rises to the level of sexual assault when it crosses the line from sexual attention to sexual contact. Sexual assault and sexual harassment are also treated differently by the law. Sexual assault is a criminal offense, while sexual harassment is a civil matter. However, acts of sexual assault can expose their perpetrators to civil liability in addition to criminal liability in many cases. 

Sexual Assault in the Workplace

Sexual assault in the workplace, which, in many cases is part of a broader pattern of sexual harassment, presents unique issues for victims. This is because the “force” required for sexual assault in the workplace often comes in the form of explicit or implicit threats of termination, particularly where the perpetrator is in a supervisory capacity over the victim. For example, a classic case of workplace sexual assault occurs when an employee’s supervisor makes sexual favors a condition of continued employment. It also frequently occurs where an employee’s supervisor bribes the victim into performing sexual favors with promises of promotions, raises, or more desirable job duties. Victims of workplace sexual assault often feel trapped in their situations, as exposing their supervisor’s misconduct could cost them their job. No need to feel trapped — let a Maryland sexual harassment lawyer help.

Legal Remedies for Workplace Sexual Assault in Maryland

The Equal Employment Opportunity Commission (EEOC)

Sexual assault and harassment are considered forms of prohibited employment discrimination under Title VII of the Civil Rights Act, which prohibits discrimination based on race, color, religion, sex, and national origin. Sexual assault and harassment fall under the prohibition against sex discrimination because they are based fundamentally on the victim’s sex. The EEOC, which is responsible for the enforcement of Title VII, states in its guidance that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 

1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment
2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual
3. Such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

When sexual harassment occurs between fellow employees (as opposed to between a supervisor and a subordinate), employers may be held responsible where the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action. When considering whether the alleged conduct constitutes sexual harassment, the Commission looks at the totality of the circumstances, including the nature of the conduct and the context in which the conduct occurred. However, not all offensive conduct rises to the level of sexual harassment — petty slights, annoyances, and isolated incidents are not enough. Rather, the conduct must create a work environment that would be intimidating, hostile, or offensive to a reasonable person to be unlawful. 

In addition to prohibiting sexual harassment and assault, Title VII also prohibits retaliation against employees who assert their rights to be free from employment discrimination, including harassment. Retaliation occurs when an employer takes a “materially adverse” action against an employee because the employee asserted rights protected by law (known as “EEO rights”) Some of the rights protected in this context include:

• Filing an EEOC complaint alleging discrimination
• Complaining about alleged discrimination against oneself or others
• Complying with an internal investigation concerning an allegation of discrimination
• Resisting sexual advances or intervening to protect others
• Refusing to comply with orders believed to be discriminatory 

To be actionable, the employer’s retaliatory act must be materially adverse, which means that it might deter a reasonable person from engaging in one or more of the EEO rights listed above. Whether an employer’s action constitutes a materially adverse action is intensely fact-specific and depends upon the nature of the case, but some of the most common materially adverse actions include: 

• Termination
• Demotion 
• Work-related threats, warnings, or reprimands
• Negative or lowered performance evaluations
• Assignment of less desirable work duties

As shown above, retaliation can occur either before the employee asserts an EEO right (as in the case of demotion or threats) or after they do so (as in the case of termination). 

How to File a Claim with the EEOC

If you believe that you have been the victim of sexual harassment or assault (or any other form of discrimination), you may file a Charge of Discrimination with the EEOC. This is a signed statement alleging that an employer, union, or labor organization engaged in employment discrimination and a request that the EEOC investigate and take action. In most cases, filing a claim with the EEOC is required before the claimant may file a private employment discrimination case against his or her employer. After you file your charge, the EEOC will contact your employer to arrange a mediation to try to help you both reach a settlement. If mediation is not successful, the EEOC will then launch an investigation. If the EEOC determines that a law was violated, your employer may be found liable for compensatory and punitive damages, including rehiring, back pay, and out-of-pocket costs the victim incurred as a result of the discrimination. If the EEOC cannot determine if a law was violated, it will send you a Notice of Right to Sue, giving you the right to sue your employer in federal court. A Maryland sexual harassment lawyer can help you file and navigate the EEOC complaint process. 

Contact a Maryland Sexual Harassment and Assault Lawyer for Help

If you have been the victim of sexual harassment or assault in the workplace, you deserve to enforce your rights and hold the perpetrators responsible. For more information about how to deal with sexual harassment and assault at work, including filing an EEOC complaint or a civil lawsuit, please contact a Maryland sexual harassment lawyer at the Law Firm of J.W. Stafford for a consultation by calling 410-514-6099.