Despite a slight dip in the number of sexual-harassment charges filed last year, the monetary benefits of sexual-harassment cases settled by the Equal Employment Opportunity Commission (EEOC)—excluding the awards obtained through litigation—was nearly $70 million. This was much higher than in previous years, showing that the #MeToo movement continues to make changes in the workplace.
The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:
The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:
The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:
One in 10 of all charges filed with the EEOC last year alleged sexual harassment. More than half claimed retaliation, and nearly a third alleged disability, race or sex discrimination. One in five charges involved reported age discrimination, while one in 10 charges claimed national origin discrimination. The percentages add up to more than 100 percent because some charges allege multiple bases.
We’ve gathered articles on the #MeToo movement from SHRM Online and other trusted media outlets.
#MeToo Had ‘Significant Impact’ on Harassment Filings in 2018
The number of sexual harassment charges filed with the EEOC jumped 13.6 percent in 2018. “We cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency,” said then EEOC acting chair Victoria A. Lipnic, who is still a commissioner. The movement started in 2017 after The New Yorker published an article about allegations against movie mogul Harvey Weinstein. But the total number of charges dropped below 80,000 for the first time since 2006. That trend is likely a reflection of the strong economy, said John F. Lomax Jr., an attorney with Snell & Wilmer law firm in Phoenix.
Defamation Lawsuits on the Rise
Plaintiffs who allege sexual misconduct are increasingly suing for defamation if the defendant criticizes their character. Meanwhile, more defendants are suing their accusers for defamation. Defamation cases are, nonetheless, difficult to win, particularly with public figures.
The attorneys of Harvey Weinstein—who is accused of harassment, assault or rape—are reportedly going to discredit his accusers in court and through the press. The prosecution wanted a gag order to prevent Weinstein’s attorneys from doing this. A judge denied the motion but criticized the lawyers for disparaging witnesses.
Companies that sell employment practices liability insurance (EPLI) are seeking higher deductibles or restricting coverage for companies in such high-risk industries as entertainment, according to a survey released at the end of last year. “Insurance companies have cut back on their willingness to take chances,” said Richard S. Betterley, an insurance consultant.
In the wake of the #MeToo movement, many states have strengthened their anti-discrimination laws and developed more-robust workplace sexual-harassment prevention training requirements. HR professionals and organizational leaders should treat the eruption of such mandates as an opportunity—not an obligation, said Glen Kraemer, an attorney with Hirschfeld Kraemer in Santa Monica, Calif., speaking at the Society for Human Resource Management 2019 Annual Conference & Exposition.
I defend employment litigation around the country.
The #MeToo movement gained momentum in early October 2017, when the hashtag went viral on social media following Alyssa Milano’s now-famous tweet, which led to responses from celebrities and ultimately resulted in an avalanche of allegations of sexual harassment and assault. The #MeToo Movement has, of course, impacted workplace dynamics, and companies have responded in various ways, such as by conducting investigations, modifying sexual harassment policies and providing more frequent and robust training of employees of all levels.
Given that sexual harassment claims can present serious reputational and financial risks to companies, questions are often raised as to the current state of the #MeToo movement—particularly with respect to its influence on the workplace. What sources can we look to in order to answer the question? There are a variety, but one notable source is year-over-year data on the rate of filings of sexual harassment charges with the U.S. Equal Employment Opportunity Commission, the size of recoveries in matters before the EEOC and determinations the EEOC has made.
So let’s consider the data the EEOC just released on these issues on January 24, 2019. A fair reading of that data suggests the #MeToo movement continues to press forward. Most notably, the data shows that the number of sexual harassment filings in fiscal year 2019 remains quite substantial but has dropped from the number filed in fiscal year 2018, and the amount of recovery for sexual harassment charges has increased from fiscal year 2018.
Let’s take a closer look at the data and then consider what it could mean in practical terms for companies.Today In: Leadership
Volume Of EEOC Sexual Harassment Charges
The EEOC recently released data that includes breakdowns for the 72,675 charges filed in fiscal year 2019 (which runs through September 30, 2019). Sexual harassment charges represented 10.3% of that overall number.
The number of sexual harassment charges filed in fiscal year 2019 was 7,514, whereas the number of such charges filed in fiscal year 2018 was 7,609. While not enormous, this drop is curious given that the #MeToo movement remained active in fiscal year 2019, with a number of high-profile cases. Notably, the number of claims in fiscal year 2019 is lower than those filed in fiscal years 2010 to 2012, but still higher from those in fiscal years 2014 to 2017.
Size Of Recoveries
While the number of sexual harassment charges dropped in fiscal year 2019, the size of the recoveries jumped up from $56.6 million in fiscal year 2018 to $68.2 million in fiscal year 2019. The size of the increase in recoveries becomes vivid when comparing fiscal year 2019 recoveries to those in fiscal year 2010 ($41.2 million) through fiscal year 2017 ($46.3 million).
How Complainants Are Faring Before The EEOC
Another interesting set of data points shows how complainants alleging sexual harassment fared before the EEOC in fiscal year 2019. As a preliminary matter, when reviewing the data, one should keep in mind that the EEOC does not issue determinations on all sexual harassment charges, and the data referenced below may reflect the fact that fewer sexual harassment were filed in fiscal year 2019.
Getting to the point, the EEOC issued fewer “no reasonable cause” determinations in fiscal year 2019 (4,297) than it did in fiscal year 2018 (4,501). Yet, the EEOC found that “reasonable cause” existed in fewer matters in fiscal year 2019 (356) than it did in fiscal year 2018 (430).
Notably, the data on reasonable cause findings during the life of the #MeToo movement shows there were fewer findings in favor of complainants during that time-frame than in fiscal year 2010 through fiscal year 2013 and an arguably similar number of findings in fiscal year 2014 through fiscal year 2016.
Charges Filed By Men
Additional data the EEOC just revealed shows that 16.8% of the EEOC charges filed in fiscal year 2019 were initiated by men, which is an increase in the 15.9% figure for filings by men in fiscal year 2018.
What Inferences Can We Draw?
The newly revealed EEOC data raises some important questions, including the following:
– Are plaintiff-side attorneys being more selective in choosing which cases to pursue?
– Have employee training programs—which many employers revisited when the #MeToo movement blossomed—become more effective?
– Is a larger swath of corporate America appreciating the risks that flow from sexual harassment claims and adjusting their conduct accordingly, while those who have not changed course have suffered more severe financial consequences?
– Are fewer claims being brought in the aggregate while more claims are being filed against higher-level managers or executives (which could engender greater recoveries)?
There are no clear answers to those questions. But it’s noteworthy that the volume of claims is still relatively high and the size of recoveries has jumped.
Also, can we draw any particular inferences from the fact that the EEOC has issued fewer reasonable cause findings while at the same time issuing fewer no reasonable cause findings? That’s a difficult question to answer as a general matter because each determination turns on the specific facts of the case. And a drop in reasonable cause findings does not fit neatly with the data showing that the size of recoveries has increased over the EEOC’s last fiscal year.
Last, the fact that more men have been filing sexual harassment charges suggests that the #MeToo movement has effectively raised awareness across the board.
All in all, the EEOC’s fiscal year 2019 data shows that despite a drop in charge filings over the EEOC’s last fiscal year, sexual harassment claims are still being filed at a meaningful rate and garnering significant recoveries. This may serve as at least one indicator that the #MeToo movement as it relates to workplace dynamics still has steam.
Please note: The purpose of this Know Your Rights Guide is to help you understand your rights and options if you are experiencing sexual harassment at work. This guide is not legal advice. Laws and legal rules frequently change and can be interpreted in different ways, so Equal Rights Advocates cannot guarantee that all of the information in this Guide is accurate as it applies to your situation.
Workplace sexual harassment takes many different forms. It can come from a coworker, a supervisor, or a customer or client, and ranges from unwanted touching, inappropriate comments or jokes, or someone promising you a promotion in exchange for sexual favors.
Sexual harassment does not have to be “sexual.” It can also look like teasing, intimidating or offensive comments based on stereotypes (e.g., about how certain people “are” or should act), or bullying someone or a group of people based on their sex, gender identity (man, woman, trans, intersex, nonbinary) or sexual orientation (queer, straight, bisexual, lesbian, gay, asexual, pansexual, two-spirit etc.) Sometimes sexual harassment is about sex and something else, like race or ethnicity. For example, a woman of color may experience harassment in the workplace differently from a white female co-worker She may be the target of abusive or hostile behavior because of the combination of her sex and her race or ethnicity.
Examples of behavior that could be harassment include but are not limited to:
making unwanted requests for sexual favors or dates
making inappropriate comments about someone’s body or appearance
saying bad things about or making fun of someone or all people of a certain gender or sexual orientation (i.e. “women are…” or “gay people all…”)
using gender-based or sexual orientation-based slurs (swear words)
making vulgar, offensive, or explicit jokes about sex or sexual acts
Note: It still counts as harassment even if the conduct is not aimed at you specifically. For example, if you are a trans person who hears a group of co-workers making offensive jokes or insults about trans people (in general), that kind of behavior could still be considered “harassment,” even though they aren’t speaking to or about you specifically.
sending or sharing emails, texts, or messages of a sexual nature
gossiping about someone’s personal relationships or sex life
unwanted or inappropriate touching of any body part, clothing, face, or hair, including hugging, kissing, or assault
staring, leering, or making gestures of a sexual nature
blocking someone’s movement
displaying, sending, or sharing vulgar pictures or pornography
For something to be considered sexual harassment, it matters what the person who’s being harassed thinks; It does not matter if the person who’s doing the harassment thinks it’s OK, harmless, not sexual, or welcomed (i.e., they think you like it or don’t have a problem with it.) It’s still harassment if the behavior is something you do not want or find offensive.
It also still counts as harassment even if, in the moment, you don’t immediately say “stop” or something else to let the person know that what they’re saying/doing is inappropriate. For example, you might laugh along at a joke that you find offensive, or accept a hug because you’re caught unaware in the moment, or because you’re worried the person will react badly if you don’t go along with their behavior. If the harasser is a supervisor or someone else who has more power than you, you might be afraid speaking up or saying “no” will impact your job. All of these are normal responses to harassment. Responding this way does not make the harassment less serious, or make you more responsible.
What are the laws?
Legally, workplace sexual harassment is considered a form of sex discrimination, so sexual harassment is illegal across the country. Generally, these federal (national) laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.
Sexual harassment is illegal. Title VII of the Civil Rights Act of 1964 (“Title VII”) makes it illegal for employers to allow anyone to be sexually harassed at work by anyone else, regardless of sex, gender, or sexual orientation.
Sexual harassment can happen to anyone. It is about power, not sexual desire. So for example, men who identify as straight can sexually harass other men – for example, by teasing or bullying those men for being “too feminine” or “acting gay.” (For examples of sexual harassment, see the What Is It? section above.)
Title VII applies to employers. It is designed to make employers accountable for providing a work environment that is free from harassment and other kinds of discrimination. It does not make it illegal for someone to harass someone else. Instead, it makes it illegal for employers to allow harassment to occur or to fail to stop it once they know it’s happening. So this civil rights law does not give you a right to sue an individual person – unless that individual person is your employer.
Retaliation is also illegal. It’s illegal for someone at work to retaliate against (punish) you for reporting or speaking out against sexual harassment, or for participating in an investigation or legal action related to sexual harassment. Examples of retaliation in the workplace include being fired or demoted, receiving a pay cut or a reduction in your hours or benefits, being assigned a different shift, location, position, receiving new or different duties, or being asked to take time off without pay. Retaliation can also be subtle, build up, or get worse over time. Examples include being iced out by coworkers, no longer being invited to meetings, or being left off of communications you were formerly on.
If you report sexual harassment, your employer cannot ignore you or retaliate against you. If a boss or someone in HR knows about the harassment, or should know that you are being harassed, legally, they must take prompt action to try to stop the behavior, investigate the harassment, and make sure it doesn’t happen again. The action also has to be “appropriate” and effective, meaning it has to actually make the harassment stop, without harming you or allowing you to become a target of retaliation.
If you complained or told your boss, HR, or another manager about sexual harassment, and they failed to do anything to make the situation better (or made it worse), you could consider taking legal action.
What are my rights?
You have the right to:
1. Work in a safe, discrimination-free environment. Your employer is required by law to provide a safe working environment that is not “hostile” to you based on your sex or gender identity.
2. Be told about your company’s sexual harassment policies — including how to report — in a way that you understand.
In California, your employer must have a written policy on harassment, and must make sure every employee knows the policy exists and gets a copy. The policy should be written in a language that employees understand.
3. Talk about or speak out against sexual harassment, whether it’s happening to you or to someone else. You can talk about sexual harassment or discrimination that’s happening at work to whoever you want, including your coworkers or your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy or practice perpetuates harassment, or a manager is engaging in harassment or discrimination. It is illegal for your employer to retaliate against (punish) you for talking with coworkers about harassment or discrimination.
4. Report the harassment to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend reporting in writing (email or letter) and making copies so you have proof later if you need it. It is important to report harassment internally first if you might want to take legal action later. (See the What Can I Do? section below)
5. Picket or protest against sexual harassment or other kinds of discrimination. In fact, when you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you’re engaging in what’s “concerted activity,” which is legally protected by the National Labor Relations Act.
6. Have your complaint taken seriously and investigated. Legally, your employer must take complaints about sexual harassment seriously and investigate them. As soon as your employer is aware of the sexual harassment, the law requires them to (1) take quick action to stop it, and (2) adequately protect you or the person who’s being harassed.
7. Ask your employer what will happen and who will know if you file a complaint. You may want to keep your complaint confidential, but be aware: Investigations usually involve interviewing the harasser, the person complaining about harassment, and other employees as potential witnesses.
8. File charges with a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state’s fair employment practices agency — for example, the California Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.
Note: There are strict deadlines for filing charges with government agencies, called “statutes of limitations.” The deadline to file with the EEOC is either 180 or 300 days from the “last act” of harassment, depending on which state you’re in. In states that have their own anti-discrimination laws and agencies, including California, the deadline to file a discrimination complaint may be different. For more, see the What Can I Do? section below.)
9. Sue (file a lawsuit against) your employer. This is only an option if you already filed a charge with the EEOC or your state’s FEPA (see #8 above), and you get you a “Right-to-Sue” Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court.
10. Testify as a witness, or participate in an investigation by the EEOC or other government agency. Your employer can’t keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into sexual harassment or other discrimination at your workplace. Even if the investigation eventually finds that there was no harassment, your participation is still a protected right, meaning your employer can’t retaliate against you (punish you) for cooperating.
If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action. Retaliation includes being fired or demoted, cutting your pay, changing your shifts, hours, benefits, or duties, being asked to take time off, or any other action that has a negative effect on you.
What can I do?
If you or someone you know is experiencing sexual harassment (including harassment based on gender identity or sexual orientation), here are some actions you can take. Remember: It is normal to be afraid or worried about reporting sexual harassment or taking other action to make the harassment stop. Do what is right for you, and don’t do anything that you think will put you in danger. These are just examples of options you might want to consider.
1. If you’re comfortable doing so, ask the person who’s doing the harassing to stop. You can do this verbally (in person or on the phone) or in writing (i.e., by letter, text message, or email). If you do so in writing, keep copies in case you need proof later. If you do so verbally, you may want to ask a trusted co-worker to go with you to serve as a witness. If you don’t feel comfortable talking or writing to the harasser directly, you should still keep detailed notes about your interactions and experiences. Keep your notes in a safe place outside of work, like at home or in a journal, your personal phone, or email account.
2. Look at your company’s policies and complaint process. Most employers give you an employee manual or handbook when you’re first hired. Review this to find out what policies might be in place to protect you. If you never got a copy or lost it, ask for a new one. Look for sections or documents that mention harassment or discrimination, which often include information about how to report the misconduct. If there is no information about how to report, see if there is a phone number for HR (Human Resources) or employee relations.
3. Write everything down.
Write down what happened when the harassment occurred, including dates and times, where it occurred, what exactly was said or done, who said/did it, what you said or did, and any witnesses who were there. Include as much detail as possible, and keep notes about every time it happens or happened. If it happens again, write down the details again right away, while the memory is fresh.
Keep notes of any conversations or meetings you have about the harassment, including with HR, your supervisor, or the person doing the harassment. Record the time, date, and place of the meeting, and who was there. If you’re comfortable doing so, ask any witnesses to write down what they heard or saw.
Keep all notes in a safe, private place at home, in a journal or notebook, on a personal email account, or in another safe place not at work.
Tip: Others may later read these written records as part of an investigation. So it’s important to stick to the facts and be as objective as possible.
Save any emails, texts, letters, or messages about the harassment, or between you and the harasser. Gather them in one place, at home, on a personal email account, or in another safe place not at work.
Keep copies of complaints or reports you file with your company, and all responses.
Keep copies of any other documents related to the harassment, and any responses.
If you think your employer has retaliated against you, keep detailed notes of every action that happened, when, where, and any witnesses.
4. Report the harassment to HR or your boss. We understand it’s not always possible to feel comfortable or safe at work after telling your boss or a supervisor about the harassment you’re experiencing. But we recommend reporting harassment to someone at work who is in a position of authority, because it is harder to make your employer take action unless you report the harassment internally first.
We recommend reporting in writing, whether it’s by email or letter. Be sure to keep copies of your report(s) in a safe place outside of work, at home or on a personal email account. For examples of what to write in your report, see our Sample Internal Complaint Example in the Tools & Resources section at the bottom of this page.
If you report orally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation. For example:
Dear [name of Supervisor or Human Resources Staff], I’m writing to confirm that we met today, [date], to discuss the fact that I am being sexually harassed by [coworker]. As we discussed, the harassing behavior has included [description of the harassment], and happened [number of times]/has been happening since [date]. You told me [description of employer’s response]. Thank you for taking the time to meet with me about this issue. Sincerely, [Your name]”
5. You could report the harassment anonymously. If reporting the harassment is not an option that feels safe or comfortable to you, you could make an anonymous report to HR or a manager. Some employers operate helplines or other ways for you to report problems anonymously, such as an employee assistance program or an Ombudsperson. There are also nonprofit organizations that allow you to anonymously report workplace sexual harassment, such as Better Brave or Callisto Expansion.
Be aware: If you only report harassment anonymously, and don’t say when, where, to whom things happened (or how you have personal knowledge of it), your employer may not be able to investigate or correct the behavior.
6. Collective Action. You could come together with one or more workers to demand a meeting with your employer, submit a petition, or take some other action.
7. Go to your union. If you’re a member of a union, you could talk to your union representative or shop steward and consider filing a grievance. Ask about the collective bargaining agreement and see if it includes provisions about sexual harassment or other discrimination. If you go to your union with a complaint about sexual, racial, or other kind of harassment, the union has a duty to help you. This is true even if the person you’re complaining about is also a member of the same union.
8.File a complaint with a government agency. If you have experienced harassment at work and your employer is aware but has not stopped it, ignored your report, or retaliated against (punished) you in any way for complaining or supporting someone else’s complaint of harassment, you can file a legal complaint with a government agency: either with your state’s anti-discrimination or civil rights agency (sometimes referred to as FEPA, or Fair Employment Practices Agency), or with the federal (national) Equal Employment Opportunity Commission (EEOC), which has offices nationally. (File a complaint in California.)
There are strict deadlines for filing with these agencies. (See number 11 below.)
Important Note: If the government agency decides to investigate your claim, they will likely interview you as well as the person doing the harassing, and may tell them about your claims. They could also interview your supervisor(s), coworkers, people in HR, and others who may have witnessed the harassment or know about your complaint.
Government agencies often take months to assign each case to an investigator, so the whole process could take many months or even years to complete. If you don’t want to wait for the agency to do or complete an investigation, you may be able to request a “Right-To-Sue” notice so you can go directly to court. The rules on getting a “Right-to-Sue” notice are different depending on whether you filed with the EEOC or a state agency. You can ask the agency or the investigator assigned to your case to find out more.
Keep in mind: There are strict deadlines about how long you have to file a lawsuit in court once you get a Right-to-Sue notice. It’s a good idea to talk to a lawyer before you file anything in court.
9. Talk to a lawyer. If you need help understanding your rights and weighing your options, Equal Rights Advocates may be able to help. ERA offers free, confidential legal information, advice, and other assistance through our Advice & Counseling service.
10. You could sue (file a lawsuit against) your employer in court.
Important Note: Before suing, you should first file a charge of discrimination with a state or federal government agency, and get a “Right to Sue” from that agency. Even if you plan to represent yourself (without an attorney), we strongly recommend speaking with an attorney before you take the step of filing a lawsuit in court.
11. Pay attention to deadlines.
Depending on the state you work in, you either have 180 days or 300 days from the last time you were sexually harassed to file a discrimination complaint (or “charge”) with the EEOC. (Sexual harassment is considered discrimination by the EEOC, so sexual harassment victims should file discrimination complaints.) Check the EEOC’s website to find your state’s deadline.
Caution: Making an internal complaint or report to your employer, or filing a grievance with your union, does not extend the deadline to file a complaint with the EEOC or your state’s anti-discrimination agency.
You have 6 months if you want to file an unfair labor practice claim with the National Labor Relations Board because you were retaliated against (punished) for taking action against sexual harassment or discrimination at work with one or more of your co-workers. (This means you engaged in “concerted” activity, which is your legally protected right). Visit the NLRB website and click on your state for more information.
You have 1 year from the last time you were sexually harassed to file a discrimination complaint with the CA Department of Fair Employment and Housing.
What could happen?
If you take legal action, there are different kinds of “remedies” you can ask for. Some have to do with money, and others are more about changing your employer’s behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you’re successful (i.e. if you win your lawsuit or reach a settlement).
Compensation for lost wages and other economic losses if the sexual harassment resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of sexual harassment or retaliation.
Compensation for emotional distress and physical pain or suffering, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from harassment.
Reinstatement: If you were fired or forced out because of the sexual harassment or retaliation, you could potentially get your job back.
Punitive damages: If you sue in court and show that the employer acted with malice or showed “reckless indifference” to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
Make your employer change their policies or practices. You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.
Retaliation is revenge and can conjure up notions of Liam Neeson going after his daughter’s kidnappers in “Taken.” Workplace retaliation isn’t quite so dramatic. Or at least, it’s hopefully not quite that dramatic.
But workplace retaliation can be devastating, and it can (but doesn’t always) break the law. Understanding the rules around workplace retaliation is critical for Human Resources staff members, managers, and anyone who has a position of influence in the business.
What Does Retaliation Look Like?
Jane comes to HR and says,
John keeps asking me out on dates. I have told him no and asked him to stop.
John is a high performer, so you transfer Jane to another less desirable shift.
This is a classic case of retaliation: Jane complained about sexual harassment, and you punished her by moving her to a different shift. Now, you may say “but her pay remains the same, her title and seniority weren’t affected. This isn’t retaliation. And besides, Jane didn’t even say it was sexual harassment.”
The employee doesn’t have to use the magic words to receive legal protection for their actions. Jane complained about unwanted sexual behavior in her department; therefore it’s a sexual harassment complaint. The transfer retaliates against Jane.
Bob has 40,000 Twitter followers, including several coworkers. He posts a picture of his paystub with the caption, “Can you believe that Acme Inc. pays such terrible wages?”.
One of his coworkers take a screenshot and presents it to you. Bob named the company, and many people have replied and retweeted his tweet. As a result, you call Bob into the office and tell him that he has violated the company’s social media policy, and for doing such, you are suspending him for two weeks without pay.
This is illegal retaliation for concerted activities. According to the National Labor Relations Board:
If employees are fired, suspended, or otherwise penalized for taking part in a protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.
In other words, employees are allowed to discuss their working conditions with their coworkers, and talking about pay is covered by that law. It doesn’t matter that many others saw it on Twitter. The National Labor Relations Board still considers his comments concerted action.
Now, of course, there cases where retaliation is much more distinctly visible. Steve complains of racial discrimination. You immediately fire Steve for a poor attitude. But activities and actions like transfersare a lot more difficult to pin down.
Is Retaliation Always Illegal?
It’s not. Retaliation is only illegal when the action that precedes the retaliation is protected by law. This can vary from state to state. It’s always illegal to retaliate against an employee for actions such as sexual harassment, racial discrimination, and concerted workplace activities. Some states have whistleblower protections that protect employees who bring up any variety of illegal activities, but not all.
If an employee makes a complaint that is unfounded, retaliation can be legal, and it can be illegal. For instance, if Jane complains that John is sexually harassing her, and you investigate and find out that actually John just asked her out one time. Factually, you found that Jane said no and he never bothered her again.
But, you still cannot retaliate against Jane as long as she genuinely believed that John behaved illegally. But, if you investigate and find out that Jane wanted John’s better shift, so she made up her complaint, then you can take action and retaliate.
The critical issue is that an employee must have a sincere belief that what they reported is illegal. Otherwise, retaliation is allowed.
Retaliation Doesn’t Stop Consequences
You may have a situation in which an employee is a poor performer, and just before you were going to discipline or terminate the employee, he files a complaint. That complaint doesn’t negate any other performance or employee actions. However, if you don’t have the documentation before the claim, acting after he files the complaint will look like illegal retaliation.
If you have documentation, you can continue along the disciplinary path, but do consider that the poor performance is a result of the harassment or discrimination, rather than an entirely separate situation.
How Do You Stop Retaliation?
Making a simple policy of “no retaliation” won’t solve all of your problems. (Of course, a policy never solves all problems.) You have to consider each situation carefully and on its own merits. Going back to Jane and John, how do you respond? If you determine John’s behavior wasn’t severe enough for punishment, yet Jane doesn’t wish to work with him anymore, how do you proceed?
If you transferred John to the less desirable shift, you are punishing him for something he didn’t do. Transferring Jane is retaliation as long as she had a sincere belief that John harassed her. Resolving such a situation can take serious negotiation and careful thought.
You may also need to sit down with Jane and explain why John’s behavior was not harassment, and that if she wishes to move to a different shift, you can do that, but otherwise, she still has to work with John. Explain to her that to transfer John when you have concluded that he did no wrong—is the wrong decision for the business.
You need to train your managers not to retaliate, and to report all protected complaints to HR. That will help you ensure that no retaliatory decisions happen and that you investigate all potential allegations.
Remember, if an employee sues you and you win on the facts, you can still lose on reported retaliation if you treated the complainant poorly. That’s why it’s critical to think through your actions before you take them and even consider discussing the right course of action with an employment law attorney.
When a potential client contacts me, they usually want to know whether or not they have a case. Unfortunately, there is no simple answer to this question because the laws governing job discrimination are complicated and the facts of any case are subject to interpretation and change. Employers routinely deny allegations of job discrimination.
The typical employee works at the pleasure of their employer. The doctrine is called “employment-at-will” and it means that an employer can terminate an employee at any time and for any reason, good or bad, provided it is not for a discriminatory purpose.
It means that being terminated, in and of itself, is not proof of discrimination, even if the employee has a good job performance record. This doctrine also applies to promotions, demotions, and transfers. Employment-at-will is too steep a hurdle for most discrimination claims.
If an employee claims that his or her termination was discriminatory, then evidence is needed that specifically establishes a discriminatory motive on the part of the employer. Direct evidence of an employer’s discriminatory motive is rarely available. Most employers are not going to: 1) admit that employees are being terminated for discriminatory reasons or 2) engage in blatantly discriminatory behavior. However, from time to time, there are exceptions.
A discriminatory motive typically has to be proven by means of circumstantial evidence. For instance, an employee and/or group of employees are treated more harshly than similarly situated employees of a different race, sex, national origin, etc. These cases are strongest when a group of employees are alleging the same type of discrimination.
Furthermore, the employee must demonstrate that his or her job performance was not an issue. Employers typically claim that an employee’s termination was due to a non-discriminatory reason, such as, deficient job performance.
A hostile work environment claim is different from the typical job discrimination claim. These claims involve overt discriminatory behavior, such as, name-calling, slurs, jokes, innuendos, and inappropriate touching and advances that make the workplace abusive and intimidating. If an employer has notice and fails to take prompt and effective corrective action, the employer can be held liable. A hostile work environment claim can be based on race, sex, national origin, etc. These cases are strongest when a group of employees are alleging the same hostile work environment.
If a female employee complaints that a male manager or co-worker is engaging in inappropriate sexual behavior, and the employer fails to take corrective action that stops the harassment, the employer could be found liable for compensatory damages, such as, emotional pain and suffering. In their defense, employers will claim that: 1) they did not have notice of the sexual harassment; 2) the sexual behavior was not severe or was consensual; or, 3) corrective action was taken.
Retaliation involves employers who punish employees for complaining about discriminatory behavior. To establish a claim of retaliation, the employee has to demonstrate that: 1) they engaged in protected activity, such as, complaining about discrimination; 2) the punishment was severe enough to deter a typical employee from continuing to complain about discrimination; and, 3) the punishment began shortly after the complaint. Today, the most popular type of job discrimination claim is retaliation.
When Audrey Murrell’s mother was a biology student in the 1950s, she was told that she had to wait for all the white students to finish their experiments before she could use the lab.
Fast-forward to the 1980s, when Murrell was a graduate student herself. The discrimination she faced was not as blatant but just as real. She was excluded from study groups, and other students would take all the copies of homework assignments before she could get one.
“You’re left with this feeling of ‘is this discrimination, or is it me, or is it them?'” says Murrell, associate professor of business administration and psychology at the University of Pittsburgh’s Joseph M. Katz Graduate School of Business. “You know it’s them, [but] it’s just harder to prove, because it’s not obvious discrimination.”
Discrimination in the workplace and academia leads to more than just a bad day. It takes a toll on the physical, mental and emotional well-being of employees and students.
“There are two broad categories of overt discrimination — threats and intimidation,” says Murrell, who for the past 15 years has researched issues such as affirmative action, workplace discrimination, sexual harassment and mentoring practices. “It’s clear [these are] discrimination. Then there are subtle forms of discrimination that are more challenging and harder to detect.”
Workplace Discrimination Is Common
Forty-six percent of African American workers believe they have been treated unfairly by their employers, compared with 10 percent of whites, according to a 2002 Rutgers University study, “A Workplace Divided: How Americans View Discrimination and Race on the Job.” The study also found 28 percent of African Americans and 22 percent of Hispanics/Latinos have experienced workplace discrimination, compared with 6 percent of whites.
“Often, the burden falls on the worker to prove that he or she is being discriminated against,” says Murrell. “This can lead to a lot of self-doubt and lack of confidence. Then you’re likely to see withdrawal, detaching oneself from the job, which leads to internal bitterness and anger.”
The feelings of hopelessness, mistrust, despair and alienation common among people facing bias don’t stop at the end of the workday. Stress and depression don’t just affect employees at work but also at home among family, friends and loved ones.
Hard to Ask for Help
A related issue is the stigma that still surrounds mental health and illness in the African American community. “There’s this belief that we have to appear strong at all times,” Murrell says. “Many of us don’t believe in going to a therapist and discussing our personal business with a stranger. [But] bias and the way it affects our physical and emotional state has very real consequences. Employers have to take notice as well, because these things will negatively impact performance.”
What Should Employers Do?
Murrell says employers can address workplace bias through the following actions:
Recognize the difference between job level and job title. An employee may be granted a particular title, but if the level of responsibility and challenges haven’t changed, the worker can feel he is being appeased and that he isn’t fully trusted or valued within the organization.
Examine barriers to both entry and advancement.
Study companies that consistently do things right. Pay attention to diversity leaders, and integrate their best practices into your workplace culture.
Concentrate on targeted recruitment strategies.
Create focused employee-development initiatives such as formal mentorship programs that equalize resources and facilitate diversity.
Form affinity or diversity groups within the company.
What Should Employees Do?
Workers also play an important part. According to Murrell, they should:
Participate in company-sponsored affinity and networking groups.
Join external professional organizations.
Develop informal social support networks made up of people who can offer insight into workplace issues.
Consider therapy or counseling. Community-based employee assistance programs also offer more holistic approaches to dealing with workplace issues.
Seek out a job coach who can help you move to the next level in your career.
Keep a detailed log of events in case you decide to file a complaint with your supervisors, human resources department, union, a lawyer and/or the Equal Employment Opportunity Commission (EEOC).
“Today’s discrimination is a lot more subtle,” Murrell says. “If we don’t tell younger people out there that discrimination has taken a different form, then they’ll think they’re the problem.”
Sexual harassment is an uncomfortable and embarrassing experience for victims. Sometimes, they feel devastating after these incidents. Sexual harassment may increase anxiety and depression of a person because of shame. Remember, the sexual advances, physical or verbal conduct of sexual nature, sexual favors that implicitly or explicitly affects your job. These acts may increase the level of harassment. These events can interfere with your work performance or create an offensive or hostile work environment.
Law for Sexual Harassment
Civil Rights Act (Title VII) of 1964, a federal law, protects folks from discrimination because of sex. As per this law, it is illegal from employers to discriminate workers in firing and hiring. Sometimes, employers change terms and conditions for genders, such as raises, job opportunities, and promotions. Remember, sexual harassment is similar to sex discrimination that can increase the chances of violation of laws.
Sexual discrimination or sexual harassment under this law proves that the harasser targeted particular sex or displayed hostility to a gender. This behavior is unacceptable regardless of the gender of victim or harasser. A few states have a law for employee protection against sexual harassment. If you are a victim of sexual harassment or discrimination, immediately contact a reliable lawyer. An experienced lawyer will help you to file a report against harassment. If you are not sure what to do in this situation, a lawyer can guide you about appropriate actions.
Before reporting sexual harassment, you have to take particular steps for protection of your rights. For instance, the policy of your employer may require you to take essential steps. Sometimes, you have to submit a report of sexual harassment to managerial employees or human resources. The report should explain the details of a harasser. A lawyer can help you with the documentation. With his/her assistance, you can outline the description of harassing conduct. In the case of nervousness, you have to speak to a manager and HR. Confidently share relevant information calmly and clearly.
How can a lawyer help you?
A harassment attorney will not only help you to prepare a harassment report but also advise you to take essential steps for your protection. A few basic steps are as under:
Document the harassment and its related discussions with your boss.
Prepare you to deal with harassers (if these events continue).
Advise you to report future harassment to the employer.
Monitor response of employer to your complaint so that your boss should not retort against you.
To deal with workplace harassment, you have to respond immediately and clearly. A worker subjected to sexual harassment can be confused and emotionally drained. He/she may deal with different perspectives on his/her current circumstances to formulate an emotional response. An attorney can help you to take the right steps.
Investigation During Harassment
An employer is responsible for investigating complaints of discrimination and sexual harassment. Your employer can’t take any negative step during an inquiry. An experienced attorney can monitor the process of investigation. The employer is responsible for proceeding with the inquiry by law.
Law prohibits employers from any retaliation against employees after receiving a complaint about sexual harassment. Retaliation may take numerous forms. It must not be limited to disciplinary termination or write-ups. These actions can be retaliation. If your boss removes you from a project or eliminates you from events, social outings, or meetings after reporting harassment, inform your sexual harassment lawyer. An attorney may analyze these actions to find out signs of retaliation.
The attorney will explain the merits and demerits of filing charges against your boss. If you are not satisfied with the response of your employer after a sexual harassment complaint, discuss this matter with your lawyer.
Understand Your Rights
Sexual harassment is a serious issue that is delimited by the law. A person can’t harass a person because of his/her sex. You can’t request sexual favors or sexual advance. It is not legal to touch a person inappropriately. If your colleague is making sexual remarks or sharing sexually offensive jokes, you can file a complaint against him/her. Remember, sexual bullying is not allowed. There is no need to work in a sexually hostile environment.
Sexual harassment can be common among male and female. The law doesn’t apply to offhand or teasing remarks. Sexual harassment occurs when adverse remarks produce a toxic environment at the office. Any kind of discrimination from an employer is unacceptable.
Impacts of Sexual Harassment on Victims
Keep it in mind that the reaction of each person for sexual harassment trauma can be different. A person may feel shocked and ultimately move to renunciation. These responses are natural because you are a victim of sexual harassment. You may feel low self-esteem. Moreover, you may find it challenging to function regularly. Try to address this issue or leave your workplace, if possible.
Victims of sexual harassment find it challenging to sleep. They don’t show interest in exercising, eating, and other tasks. Moreover, they don’t want to get up and get ready for their office. Other symptoms of sexual harassment include difficulty concentrating, headaches, stomach issues, elevated blood pressure, and forgetfulness. Victims may feel angry, betrayed, hopeless, out of control, and powerless. Sometimes, the victim experience anxiety, suicide thoughts, and depression.
Tips to Heal from Sexual Harassment
It can be difficult to move on after sexual harassment. The situation can be hopeless or complicated for you. Remember, your negative thoughts will make everything complicated. You can improve this situation with some counseling. Try to make sense and use your experience to heal from sexual harassment and move on. Here are some tips to decrease your depression and anxiety because of sexual harassment.
Accept the Situation
Try to validate your experience instead of minimizing the situation. There is no need to make excuses for the culprit. It is essential to turn your expertise into emotions. You should not bottle up your anger. Use healthy ways to express your feelings, such as stress-reducing activities, yoga, meditation, and prayer.
Share This Event with Someone
Try to talk to a safe person so that you can decrease your depression. This person should respect your feelings. You must not share your feelings with a person who will tell you that you are being emotion and overreacting. If you don’t have a trusted friend to share your feelings, you should select a support group or an attorney to share your opinions.
Journal About Experience
It is crucial to describe the effects of sexual harassment on you. Evaluate different emotions and write a letter to the harasser. Write everything that you want to tell him, but can’t. In this way, you can heal yourself. Journaling may help you to improve your situation. It is a safe way to write what is running on your mind.
Don’t Blame Yourself
Remember, sexual harassment is not your fault. There is no need to feel ashamed off because you can’t control others. You must not feel guilty after these incidents. A guilty person is a perpetrator because of sexual harassment. Completely control your response and share your displeasure with the harasser. Let this incident empower you instead of feeling confused.
Keep the past away from you and detach from possible trauma. Feel free to change your career or job for your mental satisfaction. If your identity is your work, pay attention to your work. Develop new interests and hobbies to change your workplace. Feel free to find healthy methods to deal with sexual harassment positively.
Help Others with Your Experience
After sexual harassment, you have to pay attention to your experience. Deal with this event in a better way to teach harasser a lesson. Try to help others with your experience by writing a blog. You should share your experience with readers. Build a website or support groups for victims. Speak to other people and help them to win the situation. In this way, you can turn a negative situation into positive. It will help you to build your resiliency.
Find a Reliable Counselor
A person may find it difficult to move on, so he/she will need a counselor. He/she specializes in dealing with sexual harassment in the workplace. A counselor may specialize in sexual abuse or assault. It can be helpful for a victim. Moreover, you can get the mental health staff of your workplace or school after a harassment event at school or work.
Sometimes, a counselor can compromise your privacy by sharing your information with others. For this reason, you should select a reliable counselor to share your details. Try to find a counselor from a decent place. This person should have the ability to help you in this difficult time.
If your family or friends are dealing with the outcome of sexual harassment, you should help them in this situation. Ask them to meet a sexual harassment attorney to get the necessary support.
Rachel Brooks is a contributing writer for Attorney at Law Magazine and Real Estate Agent Magazine. She has written articles on various marketing and legal related topics as well as penned featured articles on legal and real estate professionals.
Victims of sexual harassment often experience emotional and physical symptoms for years to come.
wundervisuals / Getty Images
By Nicole Spector
Sexual harassment in the workplace is nothing new, but the issue is seeing a tidal wave of recognition and attention as celebrities, co-workers and others step up to accuse Hollywood heavy weights like Harvey Weinstein, Kevin Spacey and Louis C.K. of sexual misconduct. Through their stories, we’ve learned that sexual harassment can wreak havoc on its victims, and can cause not only mental health issues, but physical effects as well.
Dr. Colleen Cullen, a licensed clinical psychologist, notes that for victims of sexual harassment, the most common diagnoses are depression, anxiety, and even post-traumatic stress disorder (PTSD).
“An experience [with sexual harassment] can either trigger symptoms of depression and anxiety that are new to the person; or it can exacerbate a previous condition that may have been controlled or resolved. Patients may also see a worsening of symptoms,” says Dr. Cullen. “Some research has found that sexual harassment early in one’s career in particular can [cause] long-term depressive symptoms.”
Someone going through or dealing with the aftermath of sexual harassment may also exhibit symptoms of PTSD, especially if the harassment leads to violence and/or assault.
“Among women who experience a sexual assault, 90 percent who experience sexual violence in the immediate aftermath exhibit symptoms of acute stress,” says Dr. Helen Wilson, a licensed clinical psychologist with expertise on the effects of trauma. “For many people, these symptoms dissipate over time through social support and coping strategies, and many people totally recover and move on; others will be so distressed that it really interferes with their work and life. It takes a certain number of symptoms to diagnose, but that’s when it can become PTSD.”
It’s Not All In Your Head; The Body Reacts, Too
Now, there are some who may counter, “Well, I can see how sexual assault can lead to such disturbances, but how can harassment be so harmful? Sounds a bit dramatic!” This thinking is deeply problematic not only because it dismisses medical science and undermines the stories of survivors, but also because it feeds the crippling doubt that so many victims face. These doubts can foster denial, which can lead to its own set of complications, particularly around physical health.
“Sometimes sexual harassment registers as a trauma, and it’s difficult for the [patient] to deal with it, so what literally happens is the body starts to become overwhelmed,” says Dr. Nekeshia Hammond, a licensed psychologist. “We call it somatizing: the mental health becomes so overwhelming one can’t process it to the point of saying ‘I have been traumatized’ or ‘I am depressed.’ Essentially, it’s a kind of denial that when experienced for a long state can turn into physical symptoms.”
These physical symptoms can run the gamut, manifesting as muscle aches, headaches, or even chronic physical health problems such as high blood pressure and problems with blood sugar.
“In the long term, it could lead to heart issues,” says Hammond.
One needn’t be in shock or denial to experience these physical effects. Hammond adds that even patients who have confronted issues with full awareness and recognize that they are anxious or depressed can experience these problems. This is because the brain and body are inextricably linked, as Dr. Wilson explains.
Physical symptoms can run the gamut, manifesting as muscle aches, headaches, or even chronic physical health problems such as high blood pressure and problems with blood sugar.
“The part of our brain that processes emotions, including stress, are among the earliest to develop, and is right next to the brain stem, which deals with involuntary functions such as heart rate and breathing,” says Wilson. “When we’re stressed resources go there, which can impact cardiovascular functioning, autoimmune diseases, metabolic function, [and so on],” says Wilson. “Sometimes people think stress is in our head, but our brains are an organ like any other. It’s all very connected. Neurotransmitters found in our brains are also found in our gut. It’s a real thing: this is why we tend to get sick when we get stressed, and over time, if we’re in constant stress or if it’s too much to handle, then there are physiological consequences.”
Sexual Harassment In The Workplace: ‘A Slithering Snake’
While sexual harassment under any circumstances can wreak havoc on a victim’s health, workplace harassment is a special kind of ugly. Nannina Angioni, a labor and law employment attorney who has worked on hundreds of sexual harassment cases describes it as “slithering snake that ripples its way through a work environment causing disastrous results.”
“Employees talk of having a pit in their stomach commuting to work, having anxiety, panic attacks, inexplicable fits of crying and physical manifestations of stress: hair falling out, hives, weight gain or loss, sleeplessness and lethargy,” says Angioni.
Dr. Cullen adds that the feelings of shame or guilt that a person may feel when sexually harassed at work can devastate their self-esteem and sense of self-worth as a professional.
“They may feel that they did something to make this happen or egg it on in some way,” says Cullen. “Embarrassment can be experienced, a fear over other people finding out. Also, particularly early in their career, a person may doubt their ability, and wonder if they weren’t only hired because of their sexual value. They may question their achievements, and if they’re young or new to a field, they may ask, ‘Is this just what it’s like in this field?’ If they have nothing to compare it to, they may not have an idea of what is normal or what the appropriate recourse is.”
Here’s where the research Cullen mentioned earlier, which shows that sexual harassment early in one’s career can have long-term mental health effects comes into play. Wendy L. Patrick, a prosecutor and educator, has personally seen depression “last up to a decade” for women who experienced sexual abuse in the workplace, and notes that it can affect their performance in subsequent jobs.
Surely the (often silent) suffering of the victim mustn’t be underestimated, but it’s important to note that when one employee is being abused, their colleagues may also be afflicted. After all, it’s stressful to keep a secret, especially one that is so clearly damaging.
“When employees are questioned about the effect of harassment [on a colleague], you always hear about some physical manifestation of stress. They can’t sleep. They have to keep getting up to go to the bathroom,” says Angioni. “It’s really hard: You’re watching someone on your team suffer, or even wither away as they just try to get through the days.”
When To Help A Hurting Colleague — And How To Get Treatment
A victim of sexual harassment may ultimately want to speak out against their abuser, but it’s important for others to speak up, too, even ahead of the victim. If you know something, say something; but don’t gossip —that only escalates the problem and further endangers the victim.
“When people suspect something is going on and don’t speak out, the harassment evolves,” says Angioni. “I counsel companies and employees to go about it tactfully. If you think something is happening, don’t talk about it at the water cooler, or in front of the victim. Don’t send snarky emails or texts. Talk to someone in management. Help without creating a further problem. If there is not an HR person, find a trusted supervisor. If you really can’t find someone you trust, you contact the Department of Fair Employment and Housing.”
If you know something, say something; but don’t gossip — that only escalates the problem and further endangers the victim.
For the victim, speaking out may be challenging, and in some cases they may just really not be willing or able to do so. It’s important that both victims and their supporters understand that while silence isn’t ideal, it may be what works for the coping or healing process at the moment. But only if you’re talking to a mental health professional about what is going on. This cannot be emphasized enough: If you are being sexually harassed you mustn’t keep this a secret; it is literally toxic to your health.
“Some victims will never report abuse and they have that right,” says Dr. Hammond. “It’s a case by case thing and sometimes there’s a reason for staying silent — if you feel your safety is threatened, or if you’re literally on the verge of having an emotional breakdown and will be unable to function. But you need to reach out to someone.”
If you’re worried about the cost of visiting a professional, or if you’re wary to begin therapy, Dr. Hammond recommends calling the National Sexual Assault Hotline at 1-800-656-HOPE (4673). Services are free and include confidential support from a trained staff member, help finding a local resources if needed, counseling, referrals, information on your local laws regarding harassment and information about medical concerns.
And, yes, admittedly, many of these issues do contribute to an environment that may not be especially friendly or supportive of employees. The environment without employee friendly offerings can be awful. A bad boss contributes particularly to an environment that employees may see as hostile.
Traditionally, bad managers took the brunt of the blame when employees quit their job. (More recent thinking is that a lack of career development and opportunity is a larger contributor.) All of these factors can make an environment seem hostile to an employee’s wants and needs. And, they are.
Requirements for a Hostile Work Environment
But, the reality is that for a workplace to be hostile, certain legal criteria must be met.
A hostile work environment is created by a boss or coworker whose actions, communication or behavior make doing your job impossible. This means that the behavior altered the terms, conditions, and/or reasonable expectations of a comfortable work environment for employees.
So, a coworker who talks loudly, snaps her gum, and leans over your desk when she talks with you, is demonstrating inappropriate, rude, obnoxious behavior, but it does not create a hostile work environment. On the other hand, a coworker who tells sexually explicit jokes and sends around images of nude people is guilty of sexual harassment and creating a hostile work environment.
A boss who verbally berates you about your age, your religion, your gender, or your race is guilty of creating a hostile work environment. Even if the comments are casual, said with a smile, or played as jokes, this does not excuse the situation.
This is especially true if you asked the individual to stop and the behavior continues. This, by the way, is always the first step in addressing inappropriate behavior at work—ask the inappropriately behaving boss or coworker to stop.
Legal Requirements for a Hostile Environment
The legal requirements for a hostile work environment include these.
The behavior or communication must be pervasive, lasting over time, and not limited to an off-color remark or two that a coworker found annoying. These incidents should be reported to Human Resources for needed intervention.
The problem becomes significant and pervasive if it is all around a worker, continues over time,
and is not investigated and addressed effectively enough by the organization to make the behavior stop.
The hostile behavior, actions, or communication must be severe. Not only is it pervasive over time, but the hostility must seriously disrupt the employee’s work. The second form of severity occurs if the hostile work environment interferes with an employee’s career progress. For example, the employee failed to receive a promotion or a job rotation as a result of the hostile behavior.
It is reasonable to assume that the employer knew about the actions or behavior and did not sufficiently intervene. Consequently, the employer can be liable for the creation of a hostile work environment.
Dealing With a Hostile Work Environment
The first step an employee needs to take if he or she is experiencing a hostile work environment is to ask the offending employee to stop their behavior or communication. If an employee finds this difficult to do on his or her own, they should solicit help from a manager or Human Resources.
When inappropriate behavior is coming from another employee, they are your best in-house resources. They also serve as your witness to the fact that you asked the offending employee to stop the behavior.
You want to put the offending employee on notice that their behavior is offensive, discriminatory, inappropriate, and that you won’t tolerate the behavior. (In the majority of cases, the employee will stop the behavior. They may not have realized the degree to which you found the actions offensive.)
Especially in instances where you have reported the behavior of a manager or supervisor to the appropriate manager or HR staff member, the behavior must stop. Additionally, the reported individual may not retaliate against you as a payback for your reporting of his or her improper behavior.
An employee who experiences a hostile work environment, and has attempted to make the behavior stop without success, though, should go to his or her manager, employer, or Human Resources staff. The first step in getting help is to ask for help. Your employer must have the opportunity to investigate the complaint and eliminate the behavior.
A later hostile workplace lawsuit you institute will flounder if the employer was unaware of the situation and had not been given the opportunity to address the behavior and hostile environment. This is in your hands because, in most workplaces, hostile, offensive behavior is noticed and addressed when it is obvious or seen by many employees.
Employees rarely need to address the behavior on their own. When the behavior is not widely viewed or if it happens only in secret without witnesses, you must bring the hostile behavior to your employer’s attention.
Workplace harassment is all too common. As victims are often unsure of what qualifies as harassment and what to do when they’re being harassed, it often goes unreported and continues to be an issue. Workplace harassment can ruin a great job and turn a company into a toxic and unproductive environment.
The “Me Too” movement has enhanced awareness of sexual harassment and many employers have reexamined and strengthened their policies and procedures. Victims have felt more comfortable reporting incidences of harassment. A recent ABC News-Washington Post poll indicated that 33 million U.S. women have been sexually harassed in work-related incidents.
The Equal Employment Opportunity Commission (EEOC) defines harassment as unwelcome verbal or physical behavior that is based on race, color, religion, sex (including pregnancy), gender/gender identity, nationality, age (40 or older), physical or mental disability, or genetic information.
Harassment becomes unlawful when:
Enduring the offensive conduct becomes a prerequisite to continued employment, or
The conduct is severe or pervasive enough that a reasonable person would consider the workplace intimidating, hostile, or abusive. Also, if a supervisor’s harassment results in an obvious change in the employee’s salary or status, this conduct would be considered unlawful workplace harassment.
Some States and Companies Have Broader Definitions
Some states have statutes that prohibit discrimination or harassment on the basis of whether a person is a smoker. A handful of states, including Wisconsin and New York, along with some private companies have laws or policies that prohibit discrimination and harassment based on arrest records or convictions.
A few others prohibit discrimination in relation to a person’s receipt of public assistance. The District of Columbia prohibits discrimination on the basis of marital status, personal appearance, family responsibilities, matriculation, or political affiliation.
Components of Workplace Harassment
Harassing conduct may include offensive jokes, slurs, name-calling, physical assaults or threats, intimidation, ridicule, insults, offensive pictures, and more.
Workplace harassment isn’t limited to sexual harassment and doesn’t preclude harassment between two people of the same gender. The harasser can be your boss, a supervisor in another department, a co-worker, or even a nonemployee. Interestingly, the victim doesn’t necessarily have to be the person being harassed; it can be anyone affected by the harassing behavior. To file a valid harassment claim, you have to show that your employer tried to prevent and correct the harassing conduct and that the employee unreasonably rejected the employer’s corrective efforts.
Some states have broad definitions of what constitutes harassment. For instance, a court in Florida determined that “fat jokes” made about an obese employee violated the Americans With Disabilities Act. A New Jersey court ruled that a person could bring a claim for disability harassment based upon two remarks made about their diabetic condition.
Harassment at Job Interviews
In addition to harassment occurring in the workplace, harassment can also take place during a job interview. During an interview, employers should not ask about your race, gender, religion, marital status, age, disabilities, ethnic background, country of origin, or sexual preferences.
These are discriminatory questions because they are not relevant to your abilities, skills, and qualifications to do the job.
The Boundary for Acceptable Behavior
Sometimes it’s hard to tell whether if a situation qualifies as workplace harassment. Some common situations which count as workplace harassment include:
Pedro was a victim of workplace harassment when his boss repeatedly referred to him with reference to his country of origin and characterized his work negatively based on his heritage.
Ellen filed a claim with the EEOC because her boss restricted her to a receptionist role based on her appearance despite receiving her college degree and possessing the skills for an inside sales job. He repeatedly said that customers liked “having a looker up front.”
Bonnie was subject to workplace harassment when her supervisor asked her out for drinks on many occasions and told her that she could go a long way if she played her cards right with him.
Jane was uncomfortable with references to the sexual conquests of co-workers in the break room. She responded to this workplace harassment by mentioning her discomfort to one of the perpetrators with whom she had a rapport. He spoke to the others, and their behavior ceased.
The Law and Your Options
Laws regarding workplace harassment are enforced by the Equal Employment Opportunity Commission. Any individual who believes that his or her employment rights have been violated may file a charge of discrimination with the EEOC.
However, prior to doing so, victims should usually make an effort to resolve the situation internally. One option is to reach out to the offending individual directly. Describe your feelings and the unacceptable language or behavior and request that it stop. Another option could involve contacting your supervisor for assistance if you are uncomfortable confronting the offender directly.
In cases where the perpetrator is your supervisor or if you are uncomfortable approaching her/him, you can contact either the Human Resources department or your supervisor’s boss and request redress. In addition, many organizations have designated an EEO or workplace complaint officer specializing in these issues who can be contacted for a confidential consultation.
Job applicants and other harassment victims may choose to consult a labor/employment attorney if other measures have not resulted in a satisfactory resolution. If so, be sure to select a lawyer with extensive experience and or a certification in employment law. Your local bar association will usually provide information about state certifications or ways to identify specialists.
Historically, some employers have urged victims to sign confidentiality agreements as part of the resolution process. Consult an attorney before relinquishing your rights.