Over the last year sexual harassment in the workplace has become a major topic of discussion. Employees who face harassment can feel powerless, but the law offers recourse for victims to recover compensation. Employers need to be mindful of how they respond to initial complaints of sexual harassment.
Sexual harassment is a form of unlawful discrimination
Among other things, Nevada’s Fair Employment Practices Act, NRS 613.310 et seq., and Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., prohibit employers with 15 or more employees from discriminating against employees on the basis of sex. Sexual harassment can be a form of employment discrimination if it is frequent or severe enough to create a hostile work environment, or if the employer takes adverse employment actions against the victim.
Nevada law provides a burden-shifting mechanism where the victim of sexual harassment is fired or suffers some other adverse action as a consequence, such as changed work hours or denied promotion. In such cases, the victim needs to show some basic facts: (1) he or she is a member of a protected class, (2) he or she is qualified for the job, (3) he or she is satisfying the job requirements, (4) he or she suffered an adverse employment action, and (5) the employer assigned others to do the same work. Apeceche v. White Pine County, 96 Nev. 723 (1980). If the victim can show these things, the burden shifts to the employer to prove that the adverse action was taken for a legitimate, nondiscriminatory reason.
For many victims of sexual harassment, this burden shifting will be a mixed blessing. The employer in such cases typically goes to great lengths to show that the actions taken against the employee were justified. In other words, the law asks the employer to blame the victim. A victim needs a good attorney to ensure that the focus remains on the employer’s bad behavior.
How anti-harassment policies can protect employers
In cases where no adverse employment actions have been taken, an employer can escape liability for sexual harassment of an employee by a supervisor if the employer can show two things. First, the employer needs to have exercised reasonable care to prevent and promptly address harassing behavior, for example by providing clear complaint resolution processes. Second, the victim must have unreasonably failed to take advantage of the mechanisms made available by the employer to resolve the issue. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
For victims of sexual harassment, the important lesson of these rules is that choosing to not bring a complaint forward may foreclose recovery through civil litigation. Whether the choice to not raise a complaint is “unreasonable” will depend on the circumstances, but employees can be certain that attorneys for employers will work hard to find any fact that suggests the employee did not take advantage of the employer’s complaint procedures.
For employers, these rules create a clear requirement that they have adequate policies in place to deal with harassment complaints. They must also take real steps to address problems. An employer that simply tells victims of harassment to “deal with it” isn’t doing its part to prevent unlawful discrimination.
GGRM serves workers in Las Vegas
Enduring sexual harassment at work can be extremely stressful, especially when it leads to lost opportunities or even a lost job. When an employer doesn’t address complaints in a way that is fair and resolves the problem, a lawsuit might be necessary. The law firm of Greenman Goldberg Raby Martinez works with clients in the Las Vegas area to get the recovery they deserve. To speak to an attorney, reach out to us today at 702-388-4476, or contact us through our website.