Do I have a case against my employer? [closed]

Question

In March 2018, the financial advisor I worked with, trapped me in my cubicle and asked me if a lump in his groin area made his pants fit tighter. While pressing his pants down to show me the lump, he said “I’m not pointing to my “thing”, my “thing” is on the other side.” This made me extremely uncomfortable. I reported this to my immediate supervisor, my branch manager and my senior operations leader. The advisor was given discipline however I was still forced to work with him which made me feel like my employer did not validate the position I was put in.

On July 15, 2019, I changed job offices and began working with a new advisor. On the first day I started, he showed me pictures of people who he would like to become his clients and he wanted me to actively communicate and socialize with them as well. The pictures were of a fake breasted woman being groped by her husband and of the woman’s license plate which read “Muff Diver.” The advisor proceeded to tell me that the couple in the picture were swingers but that he doesn’t participate in that lifestyle. This was said in front of my immediate supervisor who said nothing.

My red flags went up immediately. All the same feelings of disgust, crossing boundaries, and anxiety came flooding back at me just the same way as the incident with the first advisor.

I drove to work for a week before my mind and body just refused. My anxiety wouldn’t allow me to get in my car. I was fearful to drive because I was overcome with panic.

I am currently on FMLA. The thought of returning to the same job, at the same office, with the same advisor, has left me stricken with panic attacks, worry, no appetite, not sleeping.

Answer 1

The other answers are correct that you should speak to a lawyer, but you should expect your lawyer to tell you that you don't have a viable lawsuit.

I can't speak to Pennsylvania law, but these facts would make a pretty weak claim for sexual harassment under Title VII of the Civil Rights Act. To win a hostile-work environment case, you must demonstrate:

1. you suffered intentional discrimination because of your sex;

2. the discrimination was severe or pervasive;

3. the discrimination detrimentally affected you;

4. the discrimination would detrimentally affect a reasonable person in like circumstances; and

5. the existence of respondeat superior liability.

Minarsky v. Susquehanna Cty., 895 F.3d 303, 309 (3d Cir. 2018).

Your main problem will be in proving that the harassment was so "severe or pervasive" that it altered the terms of your employment. This is not as high a bar as it used to be, but the courts will not grant relief for "isolated incidents" unless they are extremely serious. Such incidents typically involve some kind of forcible, physical, sexual contact, which I don't see here.

The general rule is that the more severe the harassment, the less frequently it needs to occur, and vice versa. Unfortunately, courts would probably look at the events you've described -- not physical, not sexually explicit, not threatening, not intimidating, not soliciting sexual conduct, not mocking you -- and say that they are not particularly severe.

Given the lack of severity, the court would need to see them happening with pretty regular frequency, but you've described only two events in the course of about 18 months. And with one of those, the employer appears to have taken reasonable corrective action, leaving you with only one incident to complain about in however long you've worked there.

Even if a court agreed that your co-workers engaged in unwanted sexual conduct, I'd expect the employer to be able to successfully invoke the Farragher-Ellerth defense, which permits them to escape liability if they can prove:

1. that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and

2. that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998).

Since they took corrective action when you reported harassment, and you did nothing to report that there were problems even after the discipline, and did nothing to report that you felt harassed by the second incident, the Farragher-Ellerth defense would probably be successful.

Answer 2

As described you should have a valid claim both against specific individuals, and against your employer for a hostile work environment, and insufficient supervision.

The problem will be proving that what you describe happened as you have described it.

You urgently need to seek a lawyer skilled in workplace harassment cases. Such a lawyer can advise on the best way to establish your case, and which of the several possible routes should be taken in pursuing it. All that is beyond the scope of this or any online forum.

Answer 3

You have definitely been on the receiving end of harassment. You need to talk with someone more authoritative than a general forum on law.

Furthermore, I would discourage posts in forums such as here, because they could become evidence in your case, and it could work in an undesired manner.

I hope you are able to get help with your anxiety, and such anxiety is quite common when people are being harassed. I also hope that you are able to get the employer to cover your lost time, medical expenses, career impact, etc. Most of all, I hope that you are able to eventually get over this one way or another. I know more than a dozen people who went through similar things, many from one supervisor. Twenty years later it still bothers them, and that is a tough burden to carry.

Shop around for a good employment attorney, who deals with hostile work environments.