Asian Journal- The Filipino-American Community Newspaper

POPULAR comedian and television personality David Letterman confessed to having sexual relationships with women who worked on his TV show. The important question is: Does Mr. Letterman’s conduct expose him (or his company) to a sexual harassment lawsuit from these women?

People talk of sexual harassment in the workplace but a misunderstanding may arise as to its true meaning. Is flirtation in the workplace sexual harassment? Does the telling of sexually-themed jokes with co-workers constitute sexual harassment? When a supervisor engages in sex with a subordinate, is this automatically sexual harassment?

The law is very specific about when a person or an employer may be liable for sexual harassment. The person who complains of sexual harassment (i.e., the plaintiff) against a boss or co-worker (i.e., the defendant) must prove all of the following elements:

1) There is a business, service, or professional relationship between the plaintiff and the or its agent.

2) The defendant made sexual advances, solicitations, sexual requests, or demands for sexual compliance by the plaintiff, or engaged in other verbal, visual or physical conduct of a sexual nature based on gender, that were unwelcome and persistent or severe.

3) There is an inability by the plaintiff to easily terminate the relationship.

4) The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described in number 2.

Courts have recognized two types of sexual harassment. The first type involves claims of quid pro quo harassment. The second type involves harassment created by a "hostile environment." Quid pro quo harassment occurs when "submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting" that individual. It typically exists when submission to sexual conduct is made a condition of concrete employment benefits, such as a promotion, a pay increase, or a job itself. A classic example would be the boss who threatens to fire an employee if the employee refuses to have sex with him (or her).

A hostile environment claim may arise where unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile or offensive working environment, even if it does not lead to tangible or economic job consequences. An example of this would be the person who keeps inappropriately touching a fellow co-worker despite repeated requests to stop. Even if there is no threat of firing or job demotion, the inappropriate touching is likely to either create an offensive working environment or affect the co-worker’s job performance or both.

In either type of sexual harassment, the complainant must establish that the sexual conduct is unwelcome. Thus, there is no unlawful harassment where the complaining individual consented to the sexual conduct or voluntarily participated in said conduct. In other words, if the sexual attention is welcomed or consented to, it would not be harassment.

The area of sexual harassment litigation involves complex rules that are continually evolving. If someone feels that he or she has been the victim of sexual harassment in the workplace, it is always a prudent idea to consult with an experienced employment attorney to discuss legal remedies.

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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayaslaw.com or contact his office by telephone at (818) 291-0088.

( www.asianjournal.com )

( Published October 10, 2009 in Asian Journal Los Angeles p. C3 )