Rights of Those Accused of Sexual Harassment

Authored by Peter Clarke, LegalMatch Content Manager

What Are the Rights of Those Accused of Sexual Harassment?

The rights of those accused of sexual harassment are the same as all those accused of a tort – they have the right to air their defense in a fair, impartial, and speedy court of law. If the sexual harassment is aggravated to the point where it becomes a crime such as sexual assault, lewd behavior, stalking, etc., then the suspect will have additional rights afforded to a criminal suspect, such as a right to a jury trial, freedom from self-incrimination, the right to a public defender, and so on.

What Is Sexual Harassment?

Sexual harassment is a kind of sex discrimination occurring in the workplace as defined by Title VII of the Civil Rights Act of 1964. Traditionally, sexual harassment could not occur outside of the workplace. However, new laws are finding it in certain relationships of trust, such as one with a doctor, an attorney, a social worker, a real estate agent, a banker, a contractor, an executor, a landlord, a teacher, and so on.

In order to protect the rights of a person accused of sexual harassment, one must understand what sexual harassment is to present a good defense. First of all, sexual harassment cannot occur on the first sexual advance alone. People are free to make their sexual feelings known to another person in any legal way (i.e., free of touching).

However, sexual advances become sexual harassment when they are “unwelcome.” In the context of criminal law, sexual harassment can become criminal when sexual battery or stalking is committed. Sexual battery is the un-consented sexual touching of another person in a way which is harmful or offensive. The exact definition of criminal sexual harassment will differ from state to state since criminal law is largely a domain of state law. The basic idea remains the same though.

In the context of employment law, the Equal Employment Opportunity Commission (EEOC), the federal agency in charge of enforcing discrimination laws, defines sexual harassment as:

“Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature when:

  1. Submission to such conduct was 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 was used as the basis for employment decisions affecting such individual, or
  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.”

What Legal Defenses Are There If a Person Is Accused of Sexual Harassment?

Since sexual harassment is typically “unwelcome” sexual advances, those accused of sexual harassment will want to show that the other person welcomed, or at the very least did not object to, the advances. They must show that the alleged victim actually consented to the joking, touching, horseplay, or juvenile behavior. Proof of this is the alleged victim’s reciprocal behavior – sexual mannerisms, flirtation, partial removal of clothing, sexually explicit language, etc.

In criminal law, many sexual crimes are specific intent crimes. In other words, the law requires that the defendant actually have the intent to use the touching to arouse or gratify any person’s sexual desire. Other states (or other crimes) can require that the defendant have knowledge or intention. If the state cannot prove the defendant’s intent, then the state has no case.

In the workplace, there are a number of procedural rules which must be followed. It is important for the accused to raise the issue with the employer so that the employer can hear the accused version of events and so that the employer can respond before a lawsuit can hit.

It will benefit the accused immensely if the employer backs up the accused in a sexual harassment suit, since a joint lawsuit against both the accused and the employer will result in more procedural protections than a lawsuit against the accused alone. If the employer is vicariously liable with the accused, the plaintiff must first ward through a maze of bureaucracy in order to reach the courthouse. If the plaintiff fails to file her complaint with the state agencies and the EEOC before going to court, the case will be dismissed outright.

After that, the plaintiff must prove that the employer has over fifteen employees in order for the discrimination statutes to trigger. If the plaintiff gets through that moat, the plaintiff must still go through the normal process of a lawsuit. The work alone can scare many plaintiffs from going to court.

What Will Not Work as a Defense to Sexual Harassment?

However, those accused cannot defend themselves based on defenses that the victim was the same sex, that the accused was a non-employee, that the victim did not suffer any negative employment ability or economic injury, that the victim did not make an outright rejection where a rejection was clearly implied, or that they had been in a relationship before.  In the end, a jury will consider all facts and circumstances, using their commonsense about whether nonconsensual sexual advances had occurred.

Do I Need a Lawyer?

Sexual harassment is a charge which can hurt the career of the accused. If you are accused of sexual harassment, a criminal defense attorney can assist you with your rights. Sexual harassment can also lead to charges of gender discrimination or hostile work environment on the part of the employer. If your business is sued for sexual harassment, an experienced employment lawyer can defend you from costly litigation.
Last Modified: 03-23-2017 01:41 AM PDT



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