Sexual harassment occurs when unwelcome sexual conduct in the workplace is either severe or pervasive. That is, you have either experienced an over-the-top direct unwelcome sexual overture, perhaps physical in nature, or, over time, you have experienced less overt, but nonetheless, sexually unwelcome conduct repeatedly or on an ongoing basis. Such conduct can include sexual comments, unwelcome touching, exposure to pornography, leering, stares or demeaning comments.
When you’re being sexually harassed at work, it’s understandably hard to know what steps you should take to report it.
There’s fear involved – “If I report it, can I lose my job or be retaliated against? Will the company take any action to stop the harasser? Will they believe me?”
You likely also have questions about what stands up in court – how can you prove what is likely happening privately, behind closed doors?
Plus, there’s the trauma of the incident itself, which can make it harder to be strategic and think through your next steps.
We understand what you’re going through. As lawyers who have successfully litigated hundreds of sexual harassment and discrimination claims on behalf of our clients, we want to make a simple checklist for people to follow in case they find themselves in the unfortunate situation of being sexually harassed at work.
First, let me set the stage for some of the dynamics that may be at play.
Power and fear
One reason it can be hard to report sexual harassment and discrimination is because there’s power and fear in the dynamics at work.
First, there’s power: The person who has the power, usually a supervisor or boss, feels emboldened to engage in sexual harassment based on his position of authority and ability to promote or fire people. Whether it’s banter, probing questions, engaging in unwelcome behavior or assault, this person may feel entitled to sexually harass you because of his job title and perceived power over you. And if this person has a history of engaging in sexual harassment without being stopped, that sense of entitlement and power may be even stronger.
Next, let’s address two kinds of fear of the person in power.
The fear of the victim: If the victim reports the harassment, he or she fears retaliation by being demoted, sidelined, further harassed or fired. There’s also fear the harassment could be made public, and the victim’s own reputation could be muddied.
Then, there’s the fear of the HR persons or managers to whom the harassment is reported: They often like their jobs, are paid in the high five or six figures and want to keep their jobs. They know that if they investigate a high-ranking official at their company, they too could get demoted or fired.
So how do you overcome the inertia that is created by these forms of power and fear?
Steps to take if you’re being sexually harassed
First, you need to report it to the human resources department or your manager. If the manager is the harasser, report the harassment to HR or go above his head. Suppose you don’t report it to human resources or to management. In that case, they’re not on notice of the harassment, they can’t take prompt remedial action, and therefore your employer has no liability. Too, upon receiving a report of sexual harassment, your employer has a duty to take prompt remedial action. That is, your employer must investigate the complaint and, upon a determination that the harassment occurred, discipline or fire the harasser and make sure there is no further contact between the harasser and victim. A good faith report of sexual harassment is also “protected speech” which protects the complaining employee from retaliation. So take a deep breath and make an appointment with HR or your manager (or a manager above the harasser) and have that meeting – and follow these steps.
Second, document the meeting. Follow up immediately with an email that fully documents that you had a meeting and exactly what you reported about the harassment in the meeting – put it all in writing and with an email trail to prove it.
HR people are notoriously bad at documenting complaints of discrimination and harassment because they’re concerned it could become evidence later on in a court case, or could affect their own jobs. They want plausible deniability. So they sit, listen politely and give reassurances, or worse yet, discourage the complaint, and fail to document it or take action. Meanwhile the harasser may be allowed to continue to harass the complainant and others. That is why it is so important that you document the sexually harassing behavior and your report. It puts HR and the company in a position where if they do not take prompt remedial action and protect you from retaliation, they can become the subject of a meritorious lawsuit.
So, the victim of sexual harassment needs to document it. This email should say something like, “This will confirm our conversation in which I informed you that I have been sexually harassed, and here are the specific details.” Then recite the details, the details you just told to HR.
What I also tell our clients is that you should write that email carefully, before you meet with HR or management. Have the email in your hand and use it as a reference point to make sure you cover all the important facts in the meeting. Then send that email to confirm your report of harassment. It forces the company to take action when it otherwise wouldn’t. It can be beneficial to have an employment lawyer review that email in advance to help you cover all the bases to properly make a claim of sexual harassment.
Preserve All Evidence.
Often a victim of sexual harassment will have received text messages, emails or other unwelcome communications from the harasser and may have communicated back to him. It is critical that this material be preserved as it may corroborate your claims. Too, if you delete or destroy these communications, the employer may have the defense of “spoliation,” that is, a defense that says that you destroyed evidence and therefore should not be allowed to make a claim at all. Of course, the employer has a duty to preserve all evidence too.
The Nuclear Option.
Another option a sexually harassed employee can use, and an even more potent one than making an internal complaint, is filing a charge of discrimination at the United States Equal Employment Opportunity Commission. This charge is confidential, but it immediately puts the employer on the defensive. It is a precursor to filing a lawsuit under Title VII. Too, it is “bulletproof protected speech.” That is, a court cannot look behind the complaint to analyze whether it was made in good faith. The very fact that the charge was filed and served on the employer is protected speech per se and, as a matter of law, protects the employee from retaliation.
New fear strikes HR.
These actions give HR a new kind of fear: The fear of being on the receiving end of a retaliation claim if anything untoward were to happen to the victim of sexual harassment after the report or charge filing, like a demotion, firing, or further harassment. By taking these steps, sexual harassment victims can push back, take some of the power and control back, and hopefully stop an abuser.
If you’re being sexually harassed in the workplace and have questions about the next steps you should take, please contact us today.