| Federal Statute | 42 U.S.C. § 2000e (2003) 42 U.S.C. § 1981 (2003) |
| Federal Regulations | 29 C.F.R. § 1600 (2003) |
| D.C. Statute | D.C. Code Ann. §§ 2-1401.01 – 2-1403.17 (2003) |
| D.C. Regulations | D.C. Mun. Regs. tit. 4, §§ 700-799 (2001) |
| Federal Employees | 29 C.F.R. § 1614 (2003) |
| D.C. Employees | D.C. Mun. Regs. tit. 4, §§ 100-199 (2001) |
As a legal matter, workplace sexual harassment is a form of sex discrimination and is prohibited by Title VII and the D.C. Human Rights Act, among other local anti-discrimination laws. Because sexual harassment is a prevalent problem and has distinct legal principles, it is covered here in a separate chapter both for convenience and because some claims (e.g., quid pro quo harassment) apply only to sexual harassment. The procedures for filing a sexual harassment complaint with local agencies are the same as discussed in the Discrimination Chapter.
Title VII, the federal law prohibiting sexual harassment, applies only to companies, labor organizations, employment agencies or governments with 15 workers or more. See 42 U.S.C. 2000(e)(b). However, Title VII does not apply to bona fide “private members clubs” that are exempt from taxation, 42 U.S.C. § 2000(e)(b)(2). The D.C. Human Rights Act, however, applies to all employers, regardless of size.
There are two types of sexual harassment claims that alter the terms of employment either expressly or constructively: (1) quid pro quo, and (2) hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).[89] Quid pro quo harassment occurs when an employer conditions an employee’s status on complying with the employer’s sexual demands, and a hostile work environment occurs when sexually harassing conduct is sufficiently severe or pervasive as to alter the employee’s terms and conditions of employment. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998).
Two Types of Harassment
Quid Pro Quo Harassment (tangible employment action claim)
Quid pro quo[90] sexual harassment describes a situation where a supervisor takes a tangible employment action against an employee because of a refusal to submit to sexual demands. Generally, quid pro quo harassment is considered “sexual blackmail.” See Gary v. Long, 59 F.3d 1391, 1395 (D.C. Cir. 1995).[91]
Quid pro quo sexual harassment refers to a situation where a supervisor explicitly makes submission to his or her unwelcome sexual advances a condition of employment, and also encompasses situations where submission to unwelcome sexual advances is not explicitly made a condition of employment, but the rejection of such advances is nevertheless the motivation underlying an employer’s decision to take an adverse employment action against an employee. See Ellis v. Director, CIA, No. 98-2481, 1999 U.S. App. LEXIS 21638, 1999 WL 704692, at *3 (4th Cir. Sept. 10, 1999) (discussing quid pro quo sexual harassment and explaining that “‘[w]hen a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands,’” he or she establishes a violation of Title VII (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998));Briggs v. Waters, 484 F. Supp. 2d 466, (E.D. Va. 2007).
Hostile Work Environment (non-tangible employment action claim)
A plaintiff alleging sexual harassment based on a hostile work environment must prove that: (1) the conduct to which he or she was subjected was unwelcome; (2) the harassment was based on sex;[92] (3) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) there is some basis for imposing liability on the employer. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
In order to meet the third element, an employee must demonstrate that the conduct (1) was severe or pervasive enough to create an objectively hostile or abusive environment; and (2) the worker subjectively perceived the environment to be abusive. Id.[93] In order to determine whether this element is met, courts look to the frequency of the conduct, its severity, whether the acts were physically threatening or humiliating, or a mere offensive utterance, and whether that unreasonably interfered with work. Id.
Examples of conduct that can create a hostile environment include comments of a sexual nature, unwelcome physical contact and/or offensive sexual materials as a regular part of the work environment. Supervisors, managers, co-workers and even customers can be responsible for creating a hostile environment. See, e.g., Jenson v. Eveleth Taconite Co., 130 F.3d 1287 (8th Cir. 1997).
There is no “magic number” of incidents that gives rise to an actionable hostile work environment claim. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993) (“[W]e can say that whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”); see also, EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007) (“Under the totality of the circumstances test, a single incident of harassment, if sufficiently severe, could give rise to a viable Title VII claim as a well as a continuous pattern of much less severe incidents of harassment.”); Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (noting that the relevant test for harassment is “quality or quantity”).
Employer Liability
An employer will be liable for harassment by a co-worker or a supervisor if it knew or should have known of the harassment and failed to take prompt remedial action to stop further harassment. See Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989). Additionally, in the case of harassment by supervisors, an employee may more easily prove harassment under a “respondeat superior” theory. Specifically, an employer will be strictly liable for sexual harassment if a supervisor’s harassment culminates in a tangible employment action. See Ellerth v. Burlington Industries, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998). “Tangible employment actions” include any “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” See Ellerth, 524 U.S. at 761. An employer will also be liable for sexual harassment when “a supervisor’s official act precipitates the constructive discharge.”[94] See Pennsylvania State Police v. Suders, 542 U.S. 129, 141-42 (2004).
If no tangible employment action was taken, an employer may raise an affirmative defense to a claim of vicarious liability for a supervisor’s harassment by proving that (1) the employer exercised reasonable care to prevent and promptly correct the harassment; and (2) the worker unreasonably failed to take advantage of the employer’s sexual harassment corrective procedures, or to avoid harm. See Faragher, 524 U.S. at 808.
Unless the harassment is “open and notorious,” an employee must usually place the employer on notice of the sexually harassing behavior in order to hold the employer legally liable. See Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir. 1998). The worker may place the employer on notice by informing supervisory personnel or human resources of the harassment. Employees should consult the employer’s sexual harassment policy for guidance, where available.
The mere existence of a sexual harassment policy does not necessarily mean that an employer has satisfied the first part of the Ellerth/Faragher test. See Watkins v. Professional Security Bureau, 1999 WL 1032614 at *4 (4th Cir. 1999). The employer has to engage in a good-faith effort to prevent sexual harassment by providing and advancing a clear and effective policy. See Ocheltree v. Scollon Productions, Inc., 335 F.3d 325 (4th Cir. 2003) (en banc) Anderson v. G.D.C. Inc., 281 F.3d 452 (4th Cir. 2002) (placing an EEOC poster about discrimination on the wall of a dispatch trailer did not constitute a good-faith effort to comply with Title VII).
Same-Sex Harassment
Under federal law, a worker can bring a claim for sexual harassment committed by a member of the same sex. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998). To prevail on a claim of same-sex sexual harassment, the worker must prove that “the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted ‘discrimination [] because of [] sex.’” Id. at 79-80.
Domestic Workers
Many domestic workers, especially live-in domestic workers, are subject to sexual harassment, rape and other abuses, but may not be protected under Title VII because their employers do not usually employ 15 or more employees. See Hidden in the Home: Abuse of Domestic Workers with Special Visas in the United States, Human Rights Watch, June 2001, http://hrw.org/reports/2001/usadom/usadom0501-01.htm#P89_2728. As of the date of publication, domestic workers continue to be excluded from anti-discrimination protections under the D.C. Human Rights Act. D.C. Code § 2-1401.02(10). Virginia amended its Human Rights Act in 2020 to extend workplace protections to domestic workers. Va. Code Ann. § 2.2-3905. Although Maryland’s general workplace protections only apply to employers with 15 or more employees, in 2022 anti-harassment protections were expanded to include employers with 1 or more employees. Md. Ann. Code, State Govt. § 20-601(d). Maryland domestic workers are now able to bring sexual and workplace harassment claims against their employers.
Other civil and criminal laws may also apply. For domestic workers subject to human trafficking, local service providers include Ayuda and the National Domestic Workers’ Alliance – DMV chapter. For domestic workers at the homes of diplomats, contact the Human Trafficking Legal Center at [email protected]. The State Department’s Bureau of Protocol may also be able to assist – see the International Employees chapter for more information.
Sexual Harassment by a Public Employer
As with their private-sector counterparts, public employees are protected from sexual harassment by Title VII of the Civil Rights Act.
Retaliation
If the worker is subjected to adverse action after raising a complaint of sexual harassment, the worker can also bring a claim of illegal retaliation in violation of section 704(a) of Title VII. To make out a prima facie case of retaliation, the worker must show that: (1) the worker engaged in statutorily protected activity; (2) the employer took an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. See Gregg v. Hay-Adams Hotel, 942 F. Supp. 1, 8 (D.D.C. 1996). To demonstrate the causal connection, the worker must show that the adverse action would not have occurred “but for” the filing of a lawsuit. Id.
To have engaged in statutorily protected activity, the worker must have complained of harassment or participated in an EEOC (or equivalent) proceeding. Protected activity includes making internal complaints about discrimination. See Armstrong v. Index Journal Co., 647 F.2d 441, 448 (4th Cir. 1981).
It is not uncommon for a harasser or employer to fire or otherwise subject an employee to an adverse action if she reports sexual harassment. Adverse actions can include termination, demotion, suspension, denial of promotion, poor evaluation, unfavorable job re-assignment or any other action or treatment that would be likely to dissuade a “reasonable worker” from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006).
Generally, the third element – causation – can be shown by proving a link between the protected activity and any adverse action, such as a demotion or termination. That link often can be shown by demonstrating that the adverse action came soon after the complaint of harassment, but a short time frame is not required:
[A]n adverse action following closely on the heels of protected activity may in appropriate cases support an inference of retaliation even when occurring years after the initial filing of charges. See Holcomb v. Powell, 433 F.3d, 889, 903 (D.C. Cir. 2006) (considering protected activity occurring two years after the filing of the complaint); Singletary v. District of Columbia, 351 F.3d 519, 524–25 (D.C. Cir. 2003) (concluding that the district court erred in evaluating temporal proximity only on the basis of the “original protected activity” rather than protected activity years later (internal quotation marks omitted)).
See Jones v. Bernanke, 557 F.3d 670, 680 (2009). If bringing a claim solely under Title VII, the but-for causation standard may apply. See University of Texas Southwest Medical Center v. Nassar, 134 S. Ct. 881, 885 (2014).
If the employer puts forth a legitimate non-discriminatory reason for an adverse action, whether the employee has made out a prima facie case for retaliation is irrelevant; rather, the question is whether the worker has provided enough evidence to prove to a jury that retaliation has taken place. See Jones v. Bernanke, 557 F.3d 670, 681 (2009).
Filing a Complaint
In order to preserve a claim for sexual harassment or retaliation under Title VII, a person must file a charge with the EEOC within 300 days in D.C., Maryland and Virginia (180 days for WMATA employees). See 42 U.S.C. § 2000e-5. The complainant should provide a complete and detailed explanation of the incidents of sexual harassment as part of his or her EEOC charge.
[89] A definition of sexual harassment can be found in 29 CFR § 1604.11(a).
[90] Quid pro quo sexual harassment occurs when submissions to or rejection of unwelcome sexual conduct by an individual is used as the basis for employment decisions affecting such individual. 29 C.F.R. 1604.11(a)(2)(1993).
[91] All genders can be victims of and sue for sexual harassment
[92] This same standard applies to other protected categories such as race. If the harassment was “because of” the employee’s conduct it could be unlawful if it meets the other elements.
[93] The same legal principles and analysis apply in cases of hostile work environment harassment based on other protected categories, e.g., race, religion, etc.
[94] If the employee shows that the working environment is so abusive that it became so intolerable that resignation was a reasonable response, the employee may be able to establish that she was constructively discharged from her job. See Pennsylvania State Police v. Suders, 542 U.S. 129, 139 (2004) (finding that the reasonableness of the response is determined by an objective standard, based on whether conditions were severe enough that a person in the employee’s position would have no choice but to quit). Id. For example, if the employee was subject to a significant pay reduction, or was transferred to a position where she would face unbearable working conditions, she may have a claim for constructive discharge. Id.
A D.C. worker also can sue for sexual harassment under the District of Columbia Human Rights Act (“DCHRA”). The DCHRA protects against sexual harassment in the workplace, as well as other types of discrimination. See D.C. Code § 2-1401.01, et seq. A worker who has been sexually harassed can file a complaint with the District of Columbia Office of Human Rights (DCOHR), but unlike Title VII, the worker also can file a lawsuit for sexual harassment in D.C. court without needing to first file with the Office of Human Rights. Please see this manual’s chapter on Discrimination for a detailed discussion of the process for filing a complaint under the D.C. Human Rights Act.
Note: If a complaint is pending with the DCOHR, a worker may not simultaneously file a private action and vice versa; instead, the worker should first request that the Office of Human Rights dismiss his or her claim for administrative reasons, prior to filing in court. See D.C. Code § 2-1403.16(a).
Level of Proof
The 2022 Human Rights Enhancement Act greatly expanded the definition of sexual harassment under the DCHRA. Sexual harassment is defined as “any conduct of a sexual nature” that unreasonably alters an individual’s terms, conditions, or privileges of employment or has the purpose or effect of creating an intimidating, hostile or offensive work environment. Conduct can be direct or indirect, verbal or nonverbal, and includes sexual advances, requests for sexual favors, conduct of a sexual nature that is made a term or condition of employment, or where submission or rejection of the conduct is used as a basis for an employment decision affecting employment. D.C. Code § 2-1402.11(c-2).
Importantly, the HREA codified standards for determining when sexual harassment has occurred. A finder of fact shall consider the totality of the circumstances and need not determine that the conduct was severe or pervasive for it to constitute sexual harassment. The DCHRA expressly notes that there is no specific requirement for number of incidents or level of egregiousness. Finders of fact shall consider, inter alia, the frequency, duration, and location of conduct; whether the conduct involved threats, slurs, epithets, stereotypes, or humiliating or degrading conduct; or whether a party to the conduct held a position of formal or informal authority relative to another party. Id.
Filing a Complaint
Any person (even if not an aggrieved party) can file a complaint with the District of Columbia Office of Human Rights alleging a violation of the DCHRA. See D.C. Code § 2-1403.04(a).
Statute of Limitations
Under the DCHRA, a worker must file a claim alleging sexual harassment within one year. Id.
If the harassment is made up of a series of hostile acts, then a complaint with the Office of Human Rights or in court is timely as long as the last act fell within the one-year limitations period: “a hostile work environment claim concerns a single unlawful practice which is treated as an indivisible whole for purposes of the limitation period, even if the initial portion of that claim accrued outside the limitations period.” See Lively v. Flexible Packaging Assn., 830 A.2d 874 (D.C. 2003) (en banc). The Court used an “entire mosaic” analysis that looked at (1) frequency of the conduct; (2) severity; (3) whether the conduct is physically threatening or humiliating; and (4) whether there is interference with the employee’s performance at work.
Retaliation Prohibited
The D.C. Code contains broad anti-retaliation provisions. See D.C. Code § 2-1402.61; see also, Psychiatric Inst. Of Washington, 871 A.2d 1146 (D.C. 2005), (where the court stated that “all adverse conduct is relevant so long as it would not have taken place but for the gender of the victim”).
A worker suffering from workplace sexual harassment can also bring a claim for intentional infliction of emotional distress if there is sufficient evidence of creation of a hostile work environment or evidence of “extreme and outrageous conduct.” See, e.g., King v. Kidd, 640 A.2d 656, 679 (D.C. 1993) (holding that the creation of a hostile work environment constituted a prima facie case of intentional infliction of emotional distress). To establish a prima facie case of intentional infliction of emotional distress in D.C., a worker must show “(1) ‘extreme and outrageous’ conduct on the part of the defendant which (2) intentionally or recklessly (3) causes ‘severe emotional distress.’” See Best, 484 A.2d at 985 (citing Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.), cert. denied, 459 U.S. 912 (1982)).
A plaintiff can prevail on the intentional infliction of emotional distress claim even if the plaintiff fails to prove the sexual harassment claim. See Estate of Underwood v. National Credit Union Administration, 665 A.2d 621, 640 (1995) (finding that an intentional infliction of emotional distress claim stemming from alleged sexual harassment was not barred by the Workers’ Compensation Act, and that plaintiff did not have to prove sexual harassment claim to prevail on intentional infliction of emotional distress claim); see also Psychiatric Inst. Of Washington v. District of Columbia Comm’n on Human Rights, 871 A.2d 1146 (D.C. 2005).
See this manual’s chapter on Employment Tort Claims for more information regarding this cause of action.
See this manual’s section on Undocumented Workers & Discrimination Claims in the Immigration and Employment chapter.
See this manual’s section on Welfare to Work in the Discrimination chapter.
See this manual’s Discrimination chapter for Claim Procedure: D.C. Government Employees.
See this manual’s Discrimination chapter for Claim Procedure: Federal Government Employees.
Maryland law prohibits sexual harassment. While Maryland courts look to Title VII for guidance, they are not bound by federal law in their interpretation of the broader protections afforded by state law. See Haas v. Lockheed Martin, 396 Md. 469, 914 A.2d 735, 750-51 (2007). Please see this manual’s chapter on Discrimination for a detailed discussion of Maryland’s prohibition on discrimination and filing requirements.
Workplace sexual harassment need not be “severe or pervasive.” It includes unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature where submission to the conduct is explicitly or implicitly made a term or condition of employment; submission to or rejection of the conduct is used as a basis for employment decisions; or the conduct, taken in its totality, creates a working environment a reasonable person would perceive as abusive or hostile. Md. Ann. Code, State Govt. § 20-601(k).
Employers are liable for harassment where the offending party undertakes or recommends employment actions, such as hiring, firing, promoting, demoting, and reassignments, or directs, supervises, or evaluates the work activities of the employee. Employers are also liable if their negligence leads to harassments or continuation of harassment. Id. at § 20-611.
A worker aggrieved by alleged sexual harassment under § 20-606 of the Maryland State Government Code may file a complaint with the Human Relations Commission (“Commission”), or with the Equal Employment Opportunity Commission, according to the procedures prescribed in Md. Code Ann., State Gov’t § 20-1004 (2010). Claims of harassment can be brought against employers with 1 or more employees. Id. at § 20-601(d).
The worker must file the complaint with the Maryland Commission of Civil Rights (MCCR) within 2 years of the alleged offense. Id. at § 20-1004(c)(3). If an employer is based in Montgomery, Prince George’s, Howard, or Baltimore County, a worker may file their complaint with the local anti-discrimination agency of that county instead of the MCCR—subject to the same 2 year statute of limitations. Non-aggrieved parties may also inform the Commission of sexual harassment offenses, and the Commission may, on the basis of that in formation, issue a complaint on its own motion. Workers have 3 years to file a civil action in state Circuit Court. Id. § 20-1013(a)(iii)(2).
After filing with a state, local or federal anti-discrimination agency, employees have the right to bring their claims for sexual harassment in Maryland court. Please see the section that covers Maryland in this manual’s Discrimination Chapter.
Virginia prohibits sexual harassment under the Virginia Human Rights Act. Harassment is defined as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when such conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.” Va. Code Ann. § 30-129.4. Please see this manual’s chapter on Discrimination for a detailed discussion of Virginia’s prohibition on discrimination and filing requirements.
In addition to state claims, federal claims for sexual harassment should be brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
For information on how to file a claim under Title VII in Virginia, please see this manual’s chapter on Discrimination.