I’m Being Sexually Harassed At Work! What Should I Do?
First of all, you should understand that only some kinds of harassment are illegal. Being a jerk is not against the law even if the jerk is your boss or co-worker. Generally, a boss can “harass” an employee for any reason, so long as its not because of some “protected” characteristic, such as gender, religion, race, pregnancy, or sexual orientation. Harassment is also illegal if it’s based on a “protected activity” like reporting illegal harassment, filing a claim with the Labor Commissioner (DLSE) or opposing or refusing to participate in illegal activity.
Sexual harassment is one type of illegal harassment where the employee is harassed because of his or her sex. Sexual harassment can take many forms like unwanted touching, sexual slurs, jokes, comments, displaying inappropriate pictures, persistent leering, and sending unwanted sexual emails or texts.
There are two types of sexual harassment:
Quid Pro Quo: Latin for “this for that,” in quid pro quo sexual harassment, an employment benefit, such as a promotion, raise, or the job itself, is conditioned on the employee’s acceptance of a supervisor’s harassing conduct—sexual advances, for example.
Hostile Work Environment: In hostile work environment cases, a supervisor’s or co-worker’s harassing conduct is so severe or pervasive that it creates a hostile work environment for the victim. Because the legal standard in California for hostile work environment sexual harassment is severe OR pervasive, even a single instance of harassment can be enough, if it is SEVERE enough. By contrast, less severe conduct is actionable if its PERVASIVE enough.
What Should I Do If I’m Being Sexually Harassed?
Unfortunately, there is no one good answer to this question. Each situation is different, and it will almost always be the case that reporting sexual harassment will affect your employment situation. You must be prepared for the consequences, which could mean losing your job.
1. Demand that the Harassment Stop
If This can be the most difficult thing to do, particularly if the person doing the harassing is your boss. Some types of harassment may be easier to deal with than others. If its harassing emails or text messages, you can respond to those with demands that the conduct stop. This will also create an evidentiary record that the communications were offensive and you wanted them stopped.
It’s often more difficult when the harassment involves unwanted touching or groping. Verbal harassment, such as sexual jokes or comments can also be difficult to confront.
If you choose not to directly confront the harasser, that’ okay. You still have a right to be free from harassment even if you don’t ask the harasser to stop the behavior. If you do confront a harasser in person, you should document what was said and what happened in that interaction in writing, so that you can recall those events later if you need to.
2. Report the Harassment and Document it in Writing
The next step you must take to preserve your rights in a lawsuit is to report the harassment to your employer. Most employers have a human resources department or a person who is tasked with human resources responsibilities. These people are trained in how to deal with harassment and should be on your side and work to resolve the issue on your behalf. Unfortunately, HR departments don’t always take the employee’s side and can work to cover-up the harassment.
Regardless of the quality of your company’s HR department, you need to create a written record documenting your efforts to report the harassing conduct. Under the law, once the employer knows (or should have known) about the harassment, they have an obligation to investigate the situation and stop the harassment.
Your report of the harassment must be in writing. The best way to document a report of harassment is by sending an email. Emails make good evidence in a lawsuit because they are dated, time stamped, and include a record of the sender and every person who received a copy of the email. Plus, you will have a copy of the email in your sent box. If you use a work email address to do this, forward a copy from your sent folder to a personal email address, or at least print out a copy and keep it in your personal files.
3. Cooperate with HR
The tone of your communications with HR should be matter of fact. You don’t want to come across as someone seeking revenge, even if you are angry and justifiably so. Remember that if there is a lawsuit, your written communications will be key evidence that the judge and jury will see. It’s paramount that the jury perceive you as someone who is likable and who deserves to be awarded compensation.
Cooperate with HR fully and completely and don’t withhold information. An employer is only obligated to act on what they know about illegal harassment. If they aren’t informed, they cannot take steps to stop it and it could damage your case.
In addition to reporting the harassment to HR in an email, you should document all of your verbal communications with HR in confirming emails. For example, if you meet with HR or have a telephone conversation, afterwards, write an email to the person you spoke to summarizing the meeting or call. This helps to document your case more fully and will help prevent he-said-she-said situations in the future.
Finally, be cautious about signing a written statement regarding the facts of the harassment. Any statement you adopt should be complete and accurate. If facts are inaccurate or missing, it could come back to haunt you later.
4. If the Harassment Continues, Report to HR Again and Document it in Writing
If the harassment doesn’t stop after your initial report to HR, you should report each subsequent incident of harassment, again in writing, and preferably by email as discussed above. Again, you are creating an evidentiary trail that could be used in a lawsuit.
Each time you report an incident to HR, you will trigger HR’s obligation to take steps to stop the harassment. This doesn’t mean they will do what they are supposed to do however.
5. If You Are Fired, Don’t Sign Anything
Employers, particularly if they suspect that there could be a lawsuit in the future, will offer the employee a “severance” payment in exchange for the employee signing a release and waiver of any legal claims they may have. If you believe you are the victim of sexual harassment, or any other kind of unlawful employment activity – DON’T SIGN ANYTHING.
Even if you are offered what seems like a generous payment, you should wait and talk to a lawyer first. If you have a good case for sexual harassment, most of the time you can recover multiples of what the employer will be offering you in a severance. Remember, your employer would rather pay you a little now rather than more later. You should be particularly wary if your employer attempts to pressure you into signing. Don’t do it. Its much better to speak to an employment lawyer first about your case.
6. Contact an Experienced Employment Lawyer
If you believe you are the victim of sexual harassment, you should consult an experienced employment lawyer. The Orange County based Law Offices of Corbett H. Williams represents employees in harassment, retaliation, wrongful termination,wage & hour disputes and other employment matters. Strict time limits apply to sexual harassment claims, so you shouldn’t wait. Contact us today at 949-679-9909 or use the contact form below and we will respond promptly.
Corbett H. Williams is an experienced lawyer who represents California employees in a wide range of matters, including wrongful termination, sexual harassment, retaliation, whistleblower, class action, and wage & hour cases. He also has substantial experience representing business clients in consumer class action, trade secret, real estate, intellectual property and contract matters and has obtained multiple published opinions by the California Court District of Appeal and the Ninth Circuit.