We are frequently contacted by individuals who describe inappropriate and often vulgar conduct that they have experienced at work. They inquire as to whether we believe they have a valid claim for sexual harassment. In many instances, we have to advise them that we cannot assist them, despite the fact they have experienced highly offensive conduct at their job. Here is why.
Generally, prevailing in a case for sexual harassment rarely hinges on whether the conduct experienced by the employee qualifies as sexual harassment. Often, that is obvious, and in many instances the employee has corroborating witnesses, or emails, photographs, screen shots or other written evidence of the wrongful conduct. Instead, the reason why an employee may not prevail in a case of sexual harassment involves an issue employers are increasingly very skilled at arguing: the harasser was not the victim’s “supervisor.” In Illinois, the term “supervisor” is not simply the person with the authority to oversee aspects of another’s job performance, or tell an employee what to do. Instead, “supervisor” is narrowly defined as those employees who have the power to directly affect the terms and conditions of an individual’s employment.
That is not to say that the sex harassment victim will not prevail just because the harasser is a co-worker. If the harasser is not deemed to be the victim’s “supervisor,” then additional burdens are placed upon the victim in order to prevail in a case of sexual harassment. An employer may be held responsible for co-worker on co-worker harassment “only if the employer knew or should have known about the coworker’s acts of harassment and fails to take appropriate remedial action.” McKenzie v. Illinois Dept. of Transp., 92 F.3d 473, 480 (7th Cir.1996). In other words, the victim has the burden of proving that she provided notice to the company and allowed the company time to take action that the addresses the harassment.
The attorneys at the Law Office of Jeffrey Friedman, P.C. are experienced in responding to the arguments made by companies in defending the actions of their employees who have engaged in sexual harassment. If you believe you have been the victim of sexual harassment at your job, please contact our office at 312-357-1431 for a free consultation.