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Sexual Harassment is Sexual Discrimination

Under Title VII of the Civil Rights Act of 1964 and the Nevada Fair Employment Practices Act (NV Rev. Stat. Sec. 613.310et seq.), Las Vegas employers with 15 or more employees may not discriminate against their employees on the basis of sex or sexual orientation/stereotyping. As of October 2011, Las Vegas employers also are prohibited from discriminating based on gender identity. For federal and state purposes, sexual harassment is sex discrimination. Two of the biggest obstacles in any sexual harassment case are 1) defining what sexual harassment is, and 2) sufficiently proving that sexual harassment occurred.

What is Sexual Harassment?
“I know it when I see it.” These words, uttered by Supreme Court Justice Potter Stewart in describing his test to determine what is and is not pornography, can also be aptly applied in describing sexual harassment – the person allegedly harassed knows it when they see or feel offended.

The victim can be the person directly harassed, or someone offended by the conduct. Additionally, the harasser can be a fellow employee – supervisor or co-worker – or someone who has a business relationship with the employer – agent or client.

Generally acts of sexual harassment fall into two categories:

Quid Pro Quo: A person in a position of power makes sexual demands on another person by or through direct or overt pressure.

Hostile environment: The work environment allows unwelcome sexual behavior that creates an offensive, hostile, or intimidating workplace, affects the victim’s employment, or unreasonably interferes with the victim’s work performance.

Sexual harassment generally includes the following type of behavior:
1) sexist statements or behavior that insult or degrade one’s gender; for instance, making sexual comments about another person’s body parts or appearance, telling lewd jokes, or divulging sexual anecdotes.
2) unwelcomed or inappropriate physical or verbal seductive behavior, such as sharing or posting sexually inappropriate images, making sexual gestures, touching, or asking questions about one’s sexual history or orientation.
3) sexual bribery or coercion, which includes a promise of reward for engaging in or threat of punishment for not engaging in a sexual activity.

Proving Sexual Harassment The burden of proof to prove sexual harassment occurs is always initially with the alleged victim. In addition to showing an act or acts of sexual harassment occurred, the victim must also demonstrate that they are part of a class protected against sexual harassment, a complaint (preferably in writing) was appropriately made to management or followed the employer’s stated chain of command in such situations, and that the employer failed to act on the complaint. Once the victim meets this burden, to avoid damages, a Las Vegas employer must show the complained upon acts did not constitute harassment or were not sexual in nature, the victim was not a member of a protected class, no or an insufficient complaint was made, and the Las Vegas employer properly acted on the complaint.

While sexual harassment may occur without economic injury to or discharge of the victim, economic injury – firing, suspension, demotion, and relocation – and other forms of retaliation -ostracization, coworker harassment, and undesirable changes to job duties – towards the victim are also prohibited. A separate cause of action for retaliation is available to the victim, and if proven, can strengthen the victim’s sexual harassment case.

The commentary is for educational and commentary purposes only. If you or someone you know has been the victim of harassment or feel there are illegal practices occurring at your work and would like to protect your rights, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.