Instances Of Harassment Not Raised At Administrative Level Allowed In Civil Sexual Harrassment Lawsuit

March 16, 2012

A recent case out of California determined that even though certain allegations were not raised during the administrative phase of a sexual harassment case, that those allegations could be raised as part of the civil sexual harassment lawsuit.

Sexual harassment is probably the most well known form of employment discrimination. What is not as well known is just what sexual harassment is. It is not a single instance of name calling, a request for a date, or a leering look. Rather, in order to prove sexual harassment, you must show that you have been subjected to unwelcome conduct that creates a hostile environment based on your sex that is sufficiently severe and pervasive to alter the terms and conditions of your employment. If you believe you may have been subjected to sexual harassment it is important to consult with a Georgia employment discrimination attorney right away.

In Medina v. Donahoe, a female postal worker, Carolina Medina, filed a sexual harassment complaint based on a hostile work environment at the United States postal service. Her complaint with the Equal Employment Opportunity Commission (EEOC) contained allegations of sexual innuendo and harassment. Medical records obtained as part of the EEOC investigation also contained references to sexual innuendos, gestures and comments.

After the EEOC initially determined no sexual discrimination existed, Medina filed a sexual harassment lawsuit in federal court containing several specific instances of harassing conduct, some of which occurred before and some of which happened after the filing time provided by law. To bring a federal action on a hostile work environment claim, a plaintiff must contact an EEO counselor within 45 days of the alleged discrimination

Allegations of sexual harassment included: a co-worker constantly asking her out despite her refusals, a supervisor slapping her behind, another co-worked taping a sign in her work area that stated “pre-menopausal women work here.” On another occasion, Medina claimed a co-worker pretended to masturbate in her presence and draw “cartoon characters” depicting her in various poses in sexual situations. She also testified that in 2004 she was molested and raped by an unnamed co-worker, but she did not report the incident. During the February 2008 a co-worker drove by her in a forklift in a threatening manner and stated, “I want you sexually” and mouthed the words “I want to F you.”

The court determined that although many of these incidents happened before or after the filing period where an act contributing to a hostile work environment occurs within the filing period, the entire time period of the hostile environment may be considered by a court, even if “some of the component acts of the hostile work environment fall outside the statutory period.

Here the acts taken together as a whole were allowed and sufficient to establish a case of a hostile work environment for the entire time period. Additionally, despite Medina’s failure to specifically allege each action, the court determined that because the allegations were “like or reasonably related” to the allegations in Medina's administrative complaint and “fell within the scope of” the EEO office's actual investigation, that it was permissible to include these actions within the federal complaint.

Unfortunately sexual harassment still exists in the work place and although what counts as sexual harassment may not have a precise legal definition, if you are subjected to a steady stream of unwanted sexual conduct, innuendo and name calling, you may have a claim.

If you believe you have been subjected to sexual harassment or any other type of employment discrimination it is important to contact an experienced Atlanta sexual harassment lawyer immediately for a confidential consultation and to determine your next steps.