Top 10 Things You Need to Know If You're Sexually Harassed at Work
You're not alone if you are confused about workplace sexual harassment. You may suspect you're being sexually harassed but aren't sure what to do. Or maybe you're being harassed because of your gender and don't realize what you're experiencing is illegal sexual harassment.
Here are the top nine things you need to know about sexual harassment at work:
1. Don't quit.
Many employees quit as soon as the first incident of sexual harassment occurs. They're too embarrassed or scared to go back. That's perfectly understandable, but if you quit, you might be giving up your sexual harassment claims. The Supreme Court says that, if your employer has a published sexual harassment policy, you must report the harassment under that policy and give the employer the opportunity to fix the situation. If you don't, you'll probably lose your sexual harassment lawsuit.
2. Look for the policy.
Check the employee handbook, posters in the lunch room, written policies, union contract – anywhere there might be a sexual harassment policy. Then follow those steps. Report it to the person designated by your employer to receive sexual harassment complaints. If they don't fix it, or if the first person designated is the harasser, go to the next person designated.
3. Put it in writing.
Even if the policy says to call or meet with someone, always put your complaint in writing. Detail every sexual comment, sexual advance, glimpse of pornography, inappropriate jokes or emails, anything that you've experienced or witnessed where women were treated differently than men or vice versa. Call it a "Formal Complaint of Sexual Harassment." Many employees tell me that they reported "a hostile environment," "bullying" or "harassment" without saying it was because of their sex. They tell me they "didn't want to go there." Sadly, you have to go there. General harassment, bullying and a hostile work environment aren't illegal and if you report it that way you're not protected from retaliation.
4. It doesn't have to be sexual.
Most people think of sexual harassment as unwanted sexual overtures, groping, and sexual remarks. That's only one kind of sexual harassment. If you are being harassed because you're a male or because you're a female, that's sexual harassment too. Whether you're assigned to less favorable shifts, given more difficult assignments, placed in less lucrative territories, or simply being demeaned, you need to report it. I usually call this type of harassment "gender-based harassment," rather than sexual harassment, to avoid confusion. But you still have to report it under your sexual harassment policy.
5. You probably can't sue for a single incident.
The courts say that the sexual harassment has to be so severe or so pervasive (meaning frequent) that it alters the terms and conditions of your employment. A single comment, grope or inappropriate email probably isn't enough for a lawsuit, but it's worth reporting. Behavior that courts have rejected as not being sexual harassment has included calling at home, asking for dates, looking down a blouse, lifting up a skirt, one or two (or even four) instances of groping, single instances of disgusting comments, rubbing, and all types of extreme behavior.
6. They don't have to fire the harasser.
You shouldn't refuse to go back just because your employer didn't fire the harasser. The law doesn't require that. Appropriate remedies may be to discipline or warn the harasser, to move the harasser, to transfer the victim (under some circumstances), to do training or, in extreme cases, to terminate the harasser. If you did not avail yourself of the employer's policy before quitting, you are giving up your right to sue for a violation.
7. The employer must investigate.
That means they'll probably interview co-workers, the harasser and any witnesses you designate. That also means the harasser probably will figure out that you're the one who reported it. The employer might promise confidentiality, but c'mon -- how many people can he or she be harassing? Scary, but the courts say you have to do it anyhow. Most employees, no matter how terrified, tell me that they're relieved once they finally report it.
8. Keep reporting it.
It is the employer's duty to create a safe workplace. If you are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to report it to Equal Employment Opportunity Commission or to get an attorney involved.
9. You're not alone.
Sexual harassment is more about power than about sex. The harasser who gets away with small violations will usually accelerate the behavior until stopped. That means you're probably not the first victim. Someone has to be the first one to come forward. If your employer turns its head at this type of behavior, they run the risk of being held strictly liable for the sexual harassment or even incurring punitive damages.
10. It's time to quit.
OK, I know the first thing I said was, "don't quit." That's generally true. But you have to quit if you aren't going to be safe, if you're being driven to the brink of a nervous breakdown, or if the harasser becomes physically threatening and your employer won't protect you. No case is worth getting hurt. The courts say you're only justified in quitting if no reasonable person would tolerate the behavior. That means that you have an almost impossible hurdle to overcome if you sue after quitting. So only quit if you're truly risking your health, welfare or sanity, or if you have another job lined up.
If you are harassed or are in a hostile work environment due to your gender, make sure you understand your rights and responsibilities. Know your employer's policy and report it in writing so you preserve your right to sue down the road. You have the right to work in an environment that is free of sexual harassment.
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Donna Ballman
Donna Ballman’s new book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was recently released and is currently available for purchase. The book won the Law category of the 2012 USA Best Book Awards. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011 ABA Blawg 100 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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