Representing Victims throughout Virginia
Sexual harassment is defined, in Virginia, as gender discrimination. It is illegal and can include acts of sexual advances that are unwanted and requests for sexual favors, as well as verbal or physical actions that are sexual in nature. When sexual harassment occurs, it can take place against a man or a woman of any race, nationality, sexual orientation, or religion. It can affect housing, employment, education, credit resources, and accommodations from the public or health and social services.
The experienced Fairfax sexual harassment lawyers at Ashcraft & Gerel can help if you think you have a case. We have over 65 years of experience that we are prepared to put on your side.
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Forms of Sexual Harassment
There are two forms of sexual harassment outlined by Virginia law:quid pro quo sexual harassment and hostile environment sexual harassment. Read on to learn more about these different types of sexual harassment.
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Quid Pro Quo Sexual Harassment
Withquid pro quo sexual harassment, an individual is forced to lose out on career opportunities as a result of the sexual behavior or misconduct that occurs from a harasser. This can include losing a job, losing a promotion, or losing out on pay.
In many cases, the victim loses some or all of his/her job benefits as a result of the harassment. Underquid pro quo, the victim also loses out on job opportunities because he/she is unwilling to submit to the sexual advances, suggestions, or comments from the offender. In most cases, if victims were to accept the sexual misconduct from the harasser, they could advance their careers, keep their jobs, get a promotion, or receive a pay raise.
Simply by accepting or tolerating a harasser’s misconduct, it could be proven that the victim would have received favorable employment benefits versus if they rejected the sexual advances in a negative way. This type of harassment typically occurs from a person that is a position of authority such a manager, supervisor, or boss.
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Hostile Environment Harassment
Hostile environment harassment is a form of sexual discrimination that can make a workplace environment uncomfortable, hostile, or hard to comfortably work in. The behavior is sexual in nature and typically occurs by a co-worker, supervisor, vendor, customer, or even a housing provider.
In these instances, the victims of hostile environment harassment face unwanted sexual advances, gestures, and comments that are offensive and unwarranted. While there would be no possibility of an employee losing their job, pay, or promotion from their harasser, their workplace environment can become hard to work in, affecting their job performance and making it difficult to complete job responsibilities because of the actions of the harasser.
Claims that fall under the hostile environment harassment type must be:
- Unwanted or unwelcome
- Related to gender
- Severe in nature or pervasive where an abusive workplace or environment develops
- Unreasonable in nature
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What Constitutes Sexual Harassment?
Sexual harassment is unique in every case. It can take many forms and actions.
Some examples of this type of sexual misconduct include:
- Comments that are sexual or suggestive
- Touching or physical contacted that is unwelcome or warranted
- Jokes that are sexual in nature
- Sexually explicit material
- Pictures or emails that are inappropriate or focused on unwanted sexual content
Employer Liability for Sexual Harassment in Virginia
Employers can be found liable for sexual discrimination that occurs to one of their employees. It is an employer’s responsibility to ensure that this sexual misconduct stops and that they take the appropriate measures to correct the abuse.
While there is no law requiring that an employer have a sexual harassment policy in place, it is suggested as a good practice. Such a policy can include procedures for an employee who is a victim of inappropriate sexual behavior to report this type of abuse or discrimination. It can also create guidelines for employees to follow which prevent sexual harassment and avoid this type of behavior by their co-workers, peers, or other personnel.
Employers need to create a work environment that is free of sexual harassment for their employees. The steps they can take include:
- Communicating to employees that sexual harassment will not be tolerated
- Taking complaints of sexual misconduct or inappropriate behavior seriously
- Taking immediate corrective action when a claim of sexual discrimination is reported by an employee
- Investigating any and all sexual misconduct complaints thoroughly
- Providing training to staff and supervisors about sexual harassment
- Ensuring proper reporting by supervisors to the proper company authorities of any employee’s sexual harassment complaints
- Disciplining anyone on staff that violates the company policy related to sexual harassment
- Recording and keeping all information related to the sexual misconduct events
- Providing continuous check-ups of victims of sexual harassment to ensure the abuse by the harasser has stopped
- Holding exit interviews with all employees to discover any sexual harassment abuse that has been kept a secret or hidden from supervisors.
Sexual Harassment Laws in Virginia
Sexual harassment in Virginia is prohibited by both state and federal law. The federal Civil Rights Act of 1964 and 1991 provide provisions of protection for victims of discrimination. There are also state laws that have been developed under the policies of the Department of Human Resource Management and Virginia Employment Commission Agency Policy on Nondiscrimination and Equal Opportunity. These laws govern the procedures for handling sexual harassment in Virginia, including in Fairfax, as well as on reporting, investigating, and filing lawsuits against liable employers.
Proving Sexual Harassment
Victims of sexual harassment are required to prove that actual misconduct occurred. Victims bear the burden of proof and will need evidence supporting their claims. A human rights (HR) investigator with the Virginia Council on Human Rights (VCHR) from the city of Fairfax will determine if the allegations as presented by the victim are truthful and accurate.
In their investigation, they will consider:
- The frequency of the sexual misconduct
- The severity of the sexual harassment
- The context and events surrounding the alleged sexual harassment incidents
- If the harasser was told or knew that their sexual misconduct was unwarranted
- The effects of the sexual abuse on the victim including work performance and mental, physical, and emotional impact
- If the employer knew or should have known that that harassment was occurring
- What corrective measures were taken by the employer to stop the sexual advances, gestures, or suggestions
Filing a Complaint for Sexual Harassment in Virginia
To file a claim of sexual harassment in Fairfax or elsewhere in Virginia, the VCHR should be contacted. It is also possible to solely file a sexual discrimination complaint with the Equal Employment Opportunity Commission (EEOC) instead. The two agencies have a working partnership that allows cross-filings with either agency for compliance with the law in your case. It is not necessary to file separate complaints with each agency.
Under federal law, employers with under 15 employees cannot have a sexual harassment claim filed against them with the EEOC. However, the VCHR does allow for claims to be filed against smaller employers with six to 14 employees and these complaints should be filed solely with this agency.
Deadlines for Filing a Complaint of Sexual Harassment in Virginia
When filing a sexual harassment complaint against an employer, it is important to adhere to the deadlines that have been set by the VCHR. Time limits are strict with minimal exceptions provided. Your claim must be filed with the VCHR or EEOC within 180 days of the act of sexual harassment by your harasser. Federal law requires that EEOC claims are filed within 300 days of the discriminatory acts. Both filings can be cross-filed with either agency.
Compliant Process for Sexual Harassment in Virginia
After filing a sexual harassment complaint with the VCHR or the EEOC, the agency will provide a copy of the charge to the victim and the employer within 10 days of the claim filing. The agency may choose to enact a mediation process between the victim and the employer. The employer may also be asked to provide a written response to the allegations and answer a series of questions related to the charge. An investigation might be held to determine the events that occurred, what led up the complaint of inappropriate sexual misconduct, and what corrective measures, if any, were taken.
The agency can dismiss the claim if it was not filed promptly or if there is not proper jurisdiction for the EEOC to be involved.
During the agency’s investigation, witnesses will be interviewed and documentation will be requested. It is the responsibility of the victim to record the sexual harassment events in writing, as well as the response and actions taken by the employer. The victim of sexual harassment should have told their harasser to stop in a clear way and notified their employer of the unwanted behavior. The employer has the responsibility to take proper corrective measures to eliminate the behavior in an appropriate and reasonable way.
Following an investigation, the agency will notify the victim and the employer of its finding. If it is determined that discrimination did not occur, the victim will receive a notice of right to sue. This allows the victim to file a lawsuit in a court of law. At this time, the victim may need to obtain a sexual harassment attorney to proceed with the legal process.
When the agency determines that sexual discriminationhas occurred and the complaint is accurate in its account, it will work with the employer to reach a voluntary settlement agreement for the victim. If a settlement cannot be reached, the agency, or, in some instances, the Department of Justice, will advise the victim of their legal rights and determine whether the agency will file a lawsuit on behalf of the victim to remedy the complaint. If the agency decides not to pursue legal action against the employer, the victim will also receive a notice of right to sue, allowing them to proceed with legal action as they determine fit.
Hiring Sexual Harassment Lawyers in Fairfax, Virginia
Hiring a qualified attorney who is experienced in sexual harassment can help a victim file a complaint of inappropriate behavior or discrimination with the proper agency under the guidelines and timeline required. An attorney can walk the victim through the legal process and make sure they follow the laws governing sexual harassment in Virginia.
Because the state doesn’t allow for compensatory damages to be sought in a sexual discrimination case, your sexual harassment lawyers may determine that it is necessary to take your case to federal court under federal law. Once the notice of right to sue is obtained by the victim, they have 90 dates for the date of receipt to file a lawsuit in federal court. Claims in Fairfax need to be made in state court within 180 days from the date that the sexual harassment acts occurred.
Hiring sexual harassment lawyers can help move a lawsuit forward in the appropriate court and help a victim reach a reasonable and desired settlement with their employer.
When a victim hires a sexual harassment attorney to represent them in their case, they can be assured that they will receive the following:
- Quick and complete filing of their complaint with the correct agencies
- Legal counsel and advice specific to their case
- Guidance on how to proceed with a lawsuit to procure a settlement
- Proper representation in court for all proceedings
- Negotiations on the victim’s behalf of settlement awards with the employer
Contact Ashcraft & Gerel Today
If you are a victim of sexual harassment and have been discriminated against because of a harasser, you need the help of our Fairfax sexual harassment lawyers. At Ashcraft & Gerel, our knowledgeable and experienced attorneys know the law and can help you get the justice you deserve against your harasser and your employer.