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The Litigation Risk From Bystander Witnesses To Sexual Harassment

By Kirstin Heffner, The McCalmon Group, Inc.

A 26-year-old office manager and her two colleagues filed a lawsuit against the dentist they worked for, claiming that he created a toxic work environment with his unwanted sexual advances. According to the New York Daily News, the former office manager contends she was fired after complaining about the dentist's conduct.

The three coworkers, including one man, claim the 47-year-old dentist talked about prostitution and having sex in the office. On one occasion, he demanded hugs and kisses and then kissed the office manager after giving her a bonus. She allegedly told the dentist to "keep it professional" but says she was very uncomfortable.

The three former employees claim they were fired after an incident on July 17, 2017. While furniture shopping for the office, they say the dentist straddled the office manager as she was testing out a chair. She pushed him off, but the next day all three employees wrote a letter detailing their sexual harassment complaints. According to the lawsuit, all three were immediately fired.

The lawsuit accuses the dentist of sex discrimination, harassment, and retaliation. The plaintiffs seek lost wages and benefits, as well as damages for emotional distress. The dentist's lawyer denies the claims. Paulina Dedaj "Dentist made unwanted sexual advances, three ex-employees say," fox.com (Nov. 29, 2017).

Illegal sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. According to the Equal Employment Opportunity Commission (EEOC), behavior may constitute sexual harassment when it affects an individual's employment, unreasonably interferes with an individual's work performance, or creates an intimidating, hostile, or offensive work environment.

This case demonstrates two special aspects of sexual harassment. Illegal harassment can occur:

  • When the victim and the harasser are the same sex
  • When the victim is not the person harassed but someone affected by the offensive conduct.

The target of sexual advances is not the only person who can bring sexual harassment charges against an employer. As shown in this case, sexual harassment of a coworker may be contributing to a hostile work environment for a colleague who witnesses the behavior, especially where the behavior is repeated over time.

Victims of sexual harassment, whether the target or a bystander, can inform the harasser directly that the conduct is unwelcome and to stop, if they are comfortable doing so, but they should not be required to confront the harasser. The 2017 EEOC Select Task Force on the Study of Harassment in the Workplace encourages all bystanders who witness harassment, including sexual harassment, to report it. In fact, many employers require employees to report harassment experienced or witnessed to human resources immediately. And, employers who discipline those who know about sexual harassment and do not report it stand a better chance of defending a sexual harassment claims.

Retaliation against an individual who complains about sexual harassment is a serious risk in and of itself. In this case, even if the coworkers' claims of a hostile work environment fail, their claims for retaliation will likely stand. Terminating an employee for making a sexual harassment claim will lead to liability.

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