At our law firm, we represent both employers and employees in matters related to unlawful sexual harassment, including allegations of employer retaliation against employees who report it. A recent study by the National Women’s Law Center (NWLC) found that a shocking 72% of employees who requested assistance from TIME’S UP Legal Defense Fund said that after reporting sexual harassment, their employers retaliated against them.
Sexual harassment and retaliation
Workplace sexual harassment, of which there are two types, is a kind of illegal sex discrimination under both federal and Kentucky law. The first form of sexual harassment is “quid pro quo,” occurring when a person of authority over an employee requires a sexual favor in exchange for a benefit or perk of employment (like being hired or getting a raise, bonus or promotion) or to prevent a negative work-related event (such as being terminated or demoted or getting an undeserved poor performance review).
“Hostile work environment” is the other type of workplace sexual harassment in which the work atmosphere created by unwelcome conduct or speech of colleagues, management, customers or others is sexually charged to the extent that an employee becomes so uncomfortable or distressed that their work performance suffers. The sexually harassing behavior may include off-color or offensive verbal or written comments or jokes, unwanted touching or uncomfortable physical closeness, sexual images and even worse.
Unlawful retaliation occurs when an employee reports sexual harassment (or files a claim with an agency or court or supports a coworker’s claim) and the employer retaliates against the employee. Examples of retaliation include wrongful discharge, demotion, failure to promote or give certain responsibilities or projects, withholding bonuses or raises and others.
Study findings about retaliation
The NWLC scrutinized 3,317 assistance requests to the TIME’S UP Legal Defense Fund from Jan. 1, 2018, through April 30, 2020. Of the almost three-quarters of those who sought help with sexual harassment who also reported retaliation, the most frequent (36%) kind of retaliation was termination from their jobs. Other retaliatory acts included being denied promotions, receiving negative reviews, being ostracized and having their work performance closely scrutinized.
The study also found that 15% of the employees reporting received threats of termination, injury or legal action if they told anyone about the sexual harassment. Another 15% said that their reputations were damaged or people told lies about them.
These findings suggest that employers should increase efforts to prevent and stop harassment and to see that supervisors, managers, executives and human resources professionals understand what illegal retaliation is, how to prevent it and how to respond.
Likewise, all employees should understand what sexual harassment is and how they should report it as well as what unlawful retaliation is. For both management and the workforce, this information should be part of initial and ongoing training and included in employee manuals and on posters.
The high risk of retaliation that comes with reporting sexual harassment likely keeps many from doing so. An employee facing sexual harassment or related retaliation can consult an experienced attorney to understand their rights and legal remedies. Likewise, an employer should develop a working relationship with legal counsel to understand their responsibilities in this area and how to respond to accusations of sexual harassment or retaliation.