Employees in South Carolina often face sexual harassment in the workplace. [Read more: Sexual Harassment for South Carolina Employees] Nearly 1/3 of all charges filed with the EEOC in 2024 involve allegations of sexual harassment. Retaliation for making protected complaints also comprises the vast majority of charges filed. All sexual harassment is illegal, but the law makes an important distinction between sexual harassment by a manager versus sexual harassment by a co-worker. In all legal claims against an employer, the employee has to prove that the company is liable (or legally responsible) for the wrongful acts.
So, who is the sexual harasser and what impact does that have on the victim?
Sexual Harassment by a Manager
Managers are agents of the company, working directly over the employees. This includes managing day-to-day activities, setting schedules, disciplining employees, and evaluating performance. Managers have immediate control over an employee’s schedule, pay, and working environment. For employees, few things can be as disconcerting and painful than trying to perform your job duties when your manager is sexually harassing you.
The harassment could take the form of sexually suggestive comments or jokes, comments about your physical appearance or clothes, or leering or staring. Other more serious forms of harassment occur when the manager’s actions become physical. Examples include unwanted hugs, shoulder massages, any unwanted physical contact, groping or grabbing body parts, and sexual assault. These types of sexual harassment by a manager can create a sexually hostile working environment. [Read More: What is a Sexually Hostile Work Environment in SC?]
Sexual harassment by a manager makes the company immediately liable (think: legally responsible) for the harassment. The sexual harassment claim is not against the manager now, but against the company under Title VII of the Civil Rights Act. In fact, you can’t sue your direct supervisor for sexual harassment under Title VII. However, keep in mind that you can sue your supervisor for other legal claims, including assault and battery if the sexual harassment was physical in nature, or for defamation, if the supervisor made comments at work about alleged sexual promiscuity.
Sexual Harassment by a Co-Worker
For sexual harassment by a co-worker, the company is liable only if it knew or should have known about the sexual harassment and failed to take effective action to stop the harassment. So if your co-worker harasses you, but you never report the harassment to your manager or to human resources, then the company would not have knowledge of the harassment. Sometimes, however, the sexual harassment can be so severe or so repetitive that a reasonable company would be expected to know what’s going on. At that point, the company couldn’t reasonably claim, “We had no idea.” (Remember, it’s severe OR pervasive; the employee only has to prove one or the other, not both.)
What is “severe” sexual harassment? The harassment has to be serious enough to alter the terms and conditions of employment. A single isolated incident, unless it’s extreme, would not meet the standard of “severe.” Any type of groping, for example, would be severe as that type of conduct would also constitute criminal assault. But one comment about your clothing or appearance may not be enough, unless it’s graphic in nature.
“Pervasive” means that it’s happening on a regular basis, so frequency and length of the harassment is important. One time would not be enough, but a daily or weekly form of harassment over a period of time would likely meeting the pervasive requirement.
Reporting the Sexual Harassment by a Manager or a Co-Worker
Regardless of who the harasser is, the employee still needs to report the harassment to the appropriate party. If it’s co-worker harassment, report the matter to the manager or to Human Resources. If the manager is the harasser, then report the harassment to HR or to higher level management/corporate. [Read More: Making Sexual Harassment Complaints in South Carolina]
REPORT THE HARASSMENT IN WRITING. I cannot emphasize this enough. I can guarantee that if you only complain verbally, then the company will deny the complaint ever took place (or at least deny that you complained about harassment). You need to report the harassment in writing, preferably through email from your personal email account, not your work account. If you get fired, you want to make sure you have a copy of the complaint. Or if you complain verbally, then make sure you follow up with a confirmation email in writing that mentions the harassment specifically.
Check your employee handbook for any reporting procedures. Some companies have specific phone numbers on who to call to make reports. If you can’t find any direction, then contact HR in general. Just make sure you do so in writing and mention the sexual harassment specifically (general allegations of a bad work environment likely won’t be enough). If you make a complaint about sexual harassment and the company retaliates against you, then that creates a new and separate legal claim against the company, but you’ll have to prove that you made a complaint that the company was aware of. [Read More: Retaliation for Participating in a Sexual Harassment Lawsuit]
Gather supporting documents or evidence. If you have texts or emails that contain harassing comments, then make screenshots and keep copies. Make sure those documents are stored on a personal device and not a company device. If you are aware of other victims of harassment, then make notes of names and contact information, as they may become witnesses later on.
If you are experiencing emotional distress and mental health concerns resulting from the harassment, you can seek out medical assistance, such as counseling or therapy. Keep track of your medical records, as those documents may be relevant to claims for damages in any resulting lawsuit. [Read More: Damages in a South Carolina Sexual Harassment Case]
Takeaways for South Carolina Employees
If you are the employee who is being sexually harassed, it may not make much a difference to you whether it comes from a manager or a co-worker. Your only wish is to be allowed to perform your work without being subject to sexual harassment each day. But the difference in status of harassers does mean something in the law, so it’s worthwhile to be aware of the difference as you navigate these circumstances.
Overall, keep records. Make written complaints to management or HR. Cooperate in investigations. And contact a South Carolina employment lawyer to discuss your legal rights and how to fight back. [Read More: Do I Need a South Carolina Sexual Harassment Lawyer?]
You can contact our office for an evaluation of your case at 864-233-4351 or via our Contact Us form.
