Particularly, in the case of co-worker sexual harassment, an employer can only be found liable for sexual harassment if management is aware that sexual harassment is occurring in the workplace. As a result, some employers have adopted a “see no evil, hear no evil” strategy.
Management may be fully aware that sexual harassment (or some other type of workplace harassment) is occurring, but deliberately pretend that is is not occurring in order to avoid liability. Management may discourage a victim of sexual harassment from complaining. The victim’s complaint of harassment may be ignored or discarded by management. If the victim continues to complaint, management may seek to discredit the victim by papering their personnel file with allegations of poor job performance and misconduct, which may lead to termination. Spicer v. Com. of Va., Dept. of Corrections, 66 F. 3d 705, 710 (4th Cir. 1995) (We reiterated this requirement in Swentek, holding that an employer is liable only “where it had `actual or constructive knowledge of the existence of a sexually hostile work environment and took no prompt and adequate remedial action.’” 830 F.2d at 558 (quoting Katz) (emphasis added). Knowledge of work place misconduct may be imputed to an employer by circumstantial evidence if the conduct is shown to be sufficiently pervasive or repetitive so that a reasonable employer, intent on complying with Title VII, would be aware of the conduct.); Jackson v. Quanex Corp., 191 F. 3d 647, 664 (6th Cir. 1999)
“An employer cannot avoid Title VII liability for coworker harassment by adopting a “see no evil, hear no evil” strategy.” Ocheltree v. Scollon Productions, Inc., 335 F. 3d 325, 334 (4th Cir. 2003) “Once the employer has notice, then it must respond with remedial action reasonably calculated to end the harassment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 319 (4th Cir. 2008)
Therefore, victims of workplace sexual harassment (or any other kind of workplace harassment) should document each incident of harassment in real time. Documentation can be evidence of sexual harassment. Victims of workplace sexual harassment should seek corroboration from witnesses and other victims of sexual harassment; there is strength in numbers. A victim of sexual harassment should review their employer’s sexual harassment policy and follow the procedure. Finally, victims of workplace sexual harassment must complaint to management and/or government entities, such as, the Equal Employment Opportunity Commission (EEOC). A victim should put their complaint in writing and keep a copy. Sending a copy of the harassment complaint to the employer, by email, can create an indelible record.
Employers have a duty to investigate complaints of discrimination, harassment, and retaliation. “When an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).
In conclusion, “[a]n employer who fails to investigate and remedy reported sexually harassing [and other discriminatory] behavior risks being held vicariously liable for the conduct of the harassing employee.” Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
In the spring of 2020, COVID-19 caused massive disruption in the United States. Within a few months, millions of workers became unemployed due to COVID-19 related layoffs. According to the U.S. Labor Department figures, in April 2020, the number of unemployment workers exceeded those of the Great Depression, and Hispanics and African Americans workers were especially impacted. COVID-19 related layoffs disproportionately affected older and disabled workers.
According to AARP, when the overall U.S. unemployment rate spiked from 4.4% in March to 14.7% in April, the unemployment rate for women 55 and older rose even more: from 3.3% to 15.5%. The unemployment rate for men 55+ also soared, though a little bit less, from 3.4% to 12.1%.
Some employers see COVID-19 related layoffs as an opportunity to eliminate older workers. To these employers, older workers represent higher salaries and higher expenses due to insurance costs and paid time off due to illness. Some employers may have a similar attitude about disabled workers.
According to a May 2020 Bureau of Labor Statistics (BLS) Jobs Report, the number of working-age people with disabilities who were employed decreased by 950,000 between March and April (from 4,772,000 to 3,827,000), a 20 percent reduction.
Nonetheless, federal workplace anti-discrimination laws still apply. A worker can not be discrimination against and/or harassed based on their race, sex, national origin, religion, age, or disability.
The U.S. Equal Employment Opportunity Commission (EEOC) specifically warned employers about discriminatory layoffs. According to the EEOC, an employer should “review the process to determine if it will result in the disproportionate dismissal of older employees, employees with disabilities or any other group protected by federal employment discrimination laws”.
COVID-19 layoff can facilitate sexual harassment. Supervisors can use the threat of a COVID-19 related layoff to force subordinates to submit to unwanted sexual advances.
The earliest cases of COVID-19 occurred in China. As a result, Asian and Asian American workers have become targets for workplace discrimination/harassment.
Employers can deliberately use COVID-19 as a pretext to discriminate against and/or harass workers based on their race, sex, national origin, religion, age, or disability. Here are examples of illegal workplace discrimination:
1. you are laid off, while workers of a different race, sex, national origin, religion, age, or without a disability are not;
2. you are denied a promotion or increase in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;
3. you are demotion or given a reduction in pay, while workers of a different race, sex, national origin, religion, age, or without a disability are not;
4. you are given an undesirable assignment or shift, while workers of a different race, sex, national origin, religion, age, or without a disability are not; and,
5. you are being verbally or physically harassed, while workers of a different race, sex, national origin, religion, age, or without a disability are not.
Federal workplace anti-discrimination laws also prohibit retaliation. Retaliation occurs when a worker is mistreated because they complained about discrimination. Here are examples of retaliation:
2. unwarranted disciplinary action
4. refusal of deserved promotion or pay increase
5. demotion or pay reduction
6. termination of employment
Retaliation occurs when an employer takes an adverse action against a worker that is designed to stop a worker from complaining about discrimination/harassment. The adverse action should occur shortly after the worker complains.
Consult an attorney
If you are a victim of discrimination or retaliation, consult an experienced civil rights attorney.
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.