The Common Law

This column provides short responses to several sexual harassment questions received by "The Common Law."

I used to kid around and flirt with a woman friend at work. She recently asked me to stop and even used the phrase "sexual harassment." Can that really be sexual harassment?

It might be. It is tough to set out a bright-line rule, and much depends on the specific facts of each situation. Courts often decide exactly these kinds of disputes. It is very possible that while you thought "kidding around and flirting" was funny or flattering, your co-worker thought it was demeaning or offensive. Your co-worker has made you aware that your comments are unwelcome, so you should limit your conversations to only appropriate work-related issues.

Can a woman get in trouble for sexually harassing a man?

Yes. Laws prohibiting sexual harassment in the workplace protect both males and females from unwelcome on-the-job sexual advances or conduct. Despite the perception that sexual harassment claims are only filed by woman, it is not uncommon for men to file sexual harassment claims. For example, 14.3% of all sexual harassment claims filed with the Equal Employment Opportunity Commission in 2005 were filed by men. Similarly, the U.S. Supreme Court has held that same-sex harassment (i.e., employee is victim of sexual harassment from other co-workers of same sex) is prohibited under federal law.

Can I get fired for making a sexual harassment claim?

No. The law prohibits an employer from retaliating against someone who files a sexual harassment claim or otherwise participates in a sexual harassment investigation. The U.S Supreme Court has traditionally applied a fairly broad view of "retaliation," which would include any action intentionally taken by an employer that would "dissuade" a "reasonable employee" from pursuing the sexual harassment claim. Anyone who believes they have been retaliated against in relation to a sexual harassment claim should contact the EEOC or a lawyer immediately.