Protecting Yourself and Others from Sexual Harassment at Work

I feel compelled to share my thoughts about recent events related to sexual harassment. Like many of you, over the past couple of weeks I have seen a flood of #metoo statuses. I have also read numerous deeply personal stories of sexual harassment experienced by family members, friends, acquaintances, and strangers. Every story impacted me profoundly and broke my heart. Unfortunately, I am not surprised in the slightest by the ubiquity of the problem.

I have a unique perspective on this issue because my job, in large part, is to help those who have experienced injustices in the workplace. Throughout my legal career, I have represented many employees and heard countless firsthand stories of sexually harassing behavior at work exhibited by managers, co-workers, and (as we have seen with Harvey Weinstein) high-ranking executives.

Sexual harassment occurs in the vast majority of workplaces in the U.S., and despite the increasing awareness regarding its pervasiveness, it will continue to happen. Social reform takes years, if not decades, and we are a long way from creating real and lasting change. In the meantime, what practical steps can you take to protect yourself if you are the victim of sexual harassment at work? Here are a few tips:

  1. Document It.

    After every instance of sexual harassment, send yourself an email (on your personal email account) describing what happened, what was said, and how it made you feel. Ideally you should do this when you get home on the same day the incident(s) occurred. Keeping a journal also works, but I prefer emails since they are automatically date and time stamped. Experiencing sexual harassment is traumatic, and most human beings tend to suppress traumatic memories as a natural defense mechanism, so I appreciate that re-living the sexual harassment through writing may be the last thing you want to do. But it may also be the most important step you can take to protect yourself. The reason is simple. Other than witnesses, consistently documenting the harassment is the best way to prove to someone that you are telling the truth. Contemporaneous note-taking establishes credibility and creates written evidence. If you decide to take action, your credibility and evidence are of the utmost importance. Over time, your memory will fade; you may forget all of the details or mix up dates and times. Note-taking will prevent this from happening and will help you tell a consistent and persuasive story when you are ready to do so. Furthermore, if you have been harassed through text messages or emails, screenshot them, print them out, and store them in a safe place at home.

  2. Build an Alliance.

    If there are current or former co-workers whom you trust and/or with whom you have a good relationship, confidentially reach out to them and tell them what happened. Ask them for support and advice. Beyond the obvious emotional benefits reaped from feeling heard and supported by a peer, you never know who else may have experienced (or heard about) similar instances of sexual harassment. Given that harassers tend to victimize multiple people, you are likely not alone. Knowledge is power, and you should collect as much information as possible before deciding how to proceed. There is also strength in numbers since accusations from multiple employees against the same harasser increases the perception that the victims are telling the truth, while simultaneously crippling the credibility of the harasser (who will likely deny the allegations).

  3. Notify Your Employer in Writing.

    Report the harassment in writing to human resources or to the highest-ranking executive or manager at your office. If your employer provided you with an employee handbook, try to follow its instructions about submitting an internal complaint. If your employer does not have a human resources department or if the highest-ranking manager is the harasser, you can also report the harassment outside the organization to the California Department of Fair Employment and Housing1 (the “DFEH”), the Equal Employment Opportunity Commission2 (the “EEOC”), or your local police department. In notifying your employer about the harassment, you should not be vague or sugarcoat the details. Be direct, specific, and as detailed as possible. Tell your employer about every instance of past harassment and make it clear that the behavior was unwelcome. Be sure to keep a copy of your complaint in a safe place at home.
     
    Notifying your employer about the harassment might be particularly important if you are being harassed by someone who is not your supervisor or a manager. Generally speaking, an employer is automatically liable for the sexually harassing conduct of its supervisors and managers towards subordinates, but an employer is not liable for the sexual harassment of co-workers unless the employer previously knew about (or should have known about) the harassment. Once you report the harassment to your employer, your employer is legally required to conduct an investigation and to take action to prevent further harassment from occurring. That being said, you should not rely upon nor expect human resources or any manager of your employer to solve the problem for you because their job is to protect the interests of the employer, not you. You can use human resources, however, to help document the problem for you. If your employer does not resolve your problem, you may be able to take advantage of the organization’s failings later to increase the value of your potential legal claims.
     
    Finally, you should be cognizant of the fact that you may become a target after you make a complaint. While retaliation for making a complaint of sexual harassment is illegal and can form an independent basis for a lawsuit, it often occurs anyway. For this reason, as soon as possible, it is extremely important that you…

  4. Consult with an Employment Attorney.

    We do not exist just to file lawsuits. An employment attorney will support you emotionally, help you critically think through your situation, assess the strength of your potential legal claims, and analyze your strategic options. The sooner you consult with an employment attorney, the better you will understand your legal rights, the better you will be able to protect yourself, and the more equipped you will be to choose the best course of action. Should you request a transfer? Should you resign? If so, what should you say? Should you file a lawsuit? Should you leave the company’s employ and attempt to negotiate a severance agreement without filing a lawsuit? Employment attorneys can help you answer all of these questions and obtain a favorable resolution to your difficult situation. Furthermore, initial consultations are typically free.

  5. Be Mindful of Time Limits.

    If you have been sexually harassed, you should take action as soon as possible, for many reasons. If you decide you are interested in filing a lawsuit, failing to take timely action may be critical. For a sexual harassment claim to be actionable in California under state law, generally an employee must file a claim with the DFEH within one year of the harassment. The determination of the applicable time limits, or statute of limitations, is not always easy and may require the assistance of an employment attorney. Once you file a claim with the DFEH, the DFEH may investigate your claim, or you may request a right to sue letter. If and when the DFEH issues a right to sue letter, you then have one year to file a civil lawsuit. If these deadlines are not met, your ability to file a lawsuit based upon sexual harassment could be lost forever.
     
    Even if you have not personally been victimized by sexual harassment, it may be helpful to keep these tips in mind. You might be amazed at how many people in your life have experienced sexual harassment at work. These tips may help you protect your loved ones in their time of need. Moreover, if co-workers disclose to you that they have been victimized by sexual harassment, you should listen intently to them, believe them, acknowledge their feelings, tell them you are sorry, and ask them if they would like your help. If they want help, you now know what to tell them. You should also consider reporting the behavior to human resources or a manager (after discussing your plan with the victim).
     
    It is likely that every person, at some point during their careers, will witness sexual harassment of another person in the workplace. A witness should also document the harassment they see, notify their employers about it, and consult with an employment attorney as soon as possible. If we hope to correct this problem, the onus should not always be on the victims of sexual harassment to report wrongdoing. The problem is far too pervasive and complex to eradicate by relying exclusively upon brave victims coming forward. Sexual harassment thrives in work environments permeated by fear, isolation, and nondisclosure agreements. It will naturally start to diminish when all employees understand the magnitude of sexual harassment at work, talk to each other openly and honestly about it, and view it as a moral imperative to combat this widespread societal problem. If every employee commits to taking action when they witness sexual harassment, the safer and healthier all of our work environments will become.

  6. 1. For more information on how to file a complaint online visit: https://www.dfeh.ca.gov/complaint-process/complaint-forms/
    2. For more information on how to file a complaint online visit: https://www.eeoc.gov/employees/howtofile.cfm

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