The laws covering sexual harassment are some of the most confusing on the books. Here are a few things that potential claimants (and attorneys) need to know.

1. There are different statutes and different rules

Sexual harassment claims may fall under both the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq) and the Texas employment discrimination statute (Texas Labor Code § 21.051 et seq). The statutes have many similar provisions, and the state statute was designed to mimic the federal statute, but they do have important differences that may affect the claimants choice of which statute she wants to proceed under. In addition, many larger cities, including Austin, have their own civil rights division that may regulate sexual harassment claims.

2. The statutes do not apply to all employers

While both statutes cover most employers, neither statute applies to employers with less than 15 employees. While counting employees seems simple, there are numerous cases discussing whether partners in a partnership, volunteer workers, independent contractors and others in similar situations are counted as "employees."

3. Deadlines and the administrative process

Both the state and federal statutes have numerous deadline traps for the unwary. A victim of sexual harassment does not get to simply file a suit. First, the victim of sexual harassment or discrimination must go through an administrative process. If the victim wants to file a suit under the Texas anti-discrimination laws, the victim must file a complaint with the Texas Workforce Commission. The commission used to allow victims to file complaints through an attorney, but they have done away with that practice. Now, the victim may file a complaint by going to the workforce commission offices in Austin or by calling the workforce commission at (888)452-4778. This complaint must be filed within 180 days of the last discriminatory act.

If the victim wants to file suit under the Federal anti-discrimination laws, the victim must file a charge of discrimination with the federal Equal Employment Opportunity Commission. For those of us in central Texas, the complaint is filed with the San Antonio field office. This charge must be filed with the EEOC within 300 days of the last discriminatory act.

After the complaint or charge is filed, the agencies will notify the victim’s employer of the action and conduct an investigation. The timeliness of this investigation determines how long the investigation will take. Once the agency makes a recommendation, it will issue a "right to sue" letter. For state claims, any lawsuit must be filed within sixty days of receipt of the state right to sue letter. For federal claims, any lawsuit must be filed within ninety days of receipt of the federal right to sue letter.

If the investigation by either body is dragging on for 180 days without issuance of a right to sue letter, then the victim may request a right to sue letter, and the agencies will issue it without concluding the administrative process.

Complicating the matter, many cities, including Austin, have their own human rights commissions that will conduct the investigations for the other agencies.

4. Types of claims

Traditionally, sexual harassment claims involved quid pro quo harassment claims and hostile work environment claims. Quid pro quo sexual harassment prevents a supervisor from threatening a disciplinary action or promising a job benefit based on the employee having a sexual relationship with the supervisor.

Hostile work environment claims are based on the claimant having to endure sexually offensive behavior by co-workers or supervisors. The EEOC defines a hostile work environment as unwelcome sexual conduct (such as sexual advances, physical contact, or constant discussion of topics of a sexual nature) that has the purpose or effect of unreasonably interfering with an individual’s work performance or creating a hostile, offensive or intimidating work environment.

To succeed on a hostile work environment claim, the claimant must prove that the claims were so severe and pervasive as to alter the conditions of the victim’s employment and create an abusive working environment. Many factors affect this determination, including: (1) whether the conduct was verbal or physical, or both; (2) how frequently it was repeated; (3) whether the conduct was hostile and patently offensive; (4) whether the alleged harasser was a co-worker or a supervisor; (5) whether the others joined in perpetrating the harassment; and (6) whether the harassment was directed at more than one individual.

Hostile work environment claims often contain claims that the employee was constructively discharged by the conduct — that is, while the employee was not fired, the employee was basically forced to quit. If that is the case, then the case is governed as a quid pro quo claim.

Having said that, in recent years, the distinction between the two claims has blurred. Cases are now usually analyzed in terms of whether there was an adverse employment action. Courts often use the term quid pro quo to refer to cases involving adverse employment actions and "hostile work environment" to refer to cases without adverse employment actions.

5. Claim if there was adverse employment action

In the typical "adverse employment action" claim, the employee experiences some job detriment for resisting the harasser’s sexual advances. However, an employee may also experience an adverse employment action if the hostile work environment is so severe that the employee is basically forced to quit (or "constructively discharged").

If an employee can prove that he or she experienced a job detriment as a result of the sexual harassment then the employer is vicariously liable for the harassment. An employee need not prove an economic loss to prove a job detriment exists; this standard can be met by showing any significant change of employment status, such as demotion, different responsibilities, or other unfavorable change in terms of employment.

6. Claim if there was no adverse employment action

Generally, an employer is vicariously liable for damages resulting from its employees creation of a hostile work environment even when there is no adverse employment action. However, where there is no detrimental employment action, an employer may avoid this vicarious liability by proving an affirmative defense if it can establish: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

As mentioned earlier, to prevail on a claim with no adverse employment action, the employee must prove that there was unwelcome conduct that was sexual in nature or because of sex and that the conduct was so severe and pervasive as to create a hostile work environment.

It is important to note that offensive conduct need not be sexual in nature; conduct may be actionable if it is merely because of sex. For example, an employer that shows hostility to women, but not men, can be liable even if the conduct is not sexual in nature.

Regarding the affirmative defense, it is critical that prospective plaintiffs avail themselves of any opportunities their employer provides to report sexual harassment. Failure to do this probably prevents a harassed employee (where there is no adverse employment action) from bringing a claim. However, cases recognize an exception where the harasser is so high in the corporate structure that trying to report the harasser would be fruitless, and thus, the failure to report is not unreasonable.

7. Retaliation

The federal and Texas discrimination statutes also make it unlawful for an employer to retaliate against employees for opposing an unlawful practice or for making, assisting, testifying or otherwise participating in any investigation or charge of discrimination. The plaintiff need not be the person being harassed. An employee who didn’t experience harassment but who testifies against the employer is protected against retaliation.

8. Available damages

Plaintiffs may be entitled to a wide array of damages, including back pay (for past wages lost), front pay (for future wages lost), reinstatement, lost benefits, mental anguish and other compensatory damages, punitive damages, and attorneys’ fees.

In sum, sexual harassment claims are very complicated and have very quick deadlines. Anyone that thinks they are a victim of sexual harassment should act promptly. And remember, this is general advice and is not intended to create an attorney-client relationship.  You should consult with an attorney of your own to determine how the law affects the facts of your case.