Reporting Sexual Harassment in the Workplace? Consider These Issues...

Reporting sexual harassment in the workplace is never easy, and your fear of retaliation is justified. Although you need to aware of the risks involved in reporting sexual harassment, there are steps you can take (without a lawyer) to protect yourself. If you are well-prepared and well-informed, you can take that huge leap and stand up for your rights in the workplace. Here are several issues to consider when considering whether and when to report the harassment to Human Resources or management.

1. Is this sexual harassment ?

You may be wondering whether the mistreatment you are enduring at work would even be considered sexual harassment. Sexual harassment is a form of gender discrimination that includes unwelcome sexual advances, requests for sexual favors, and verbal or physical conduct of a sexual nature. However, the unwelcome conduct does not need to be sexual in nature to be considered sexual harassment. Offensive remarks about a person's gender, such as offensive, stereotyped comments about women in general, can constitute sexual harassment.

Isolated, mildly offensive incidents may not rise to the level of illegal sexual harassment. To be considered illegal sexual harassment, the unwelcome conduct must be either so severe or so frequent and pervasive that it creates an objectively intolerable working environment. The legal term for a workplace environment in which the harassment is severe or pervasive is a "hostile work environment." You may rightly feel that your work environment is hostile, but the term "hostile work environment" is a specific legal term that unfortunately applies only to the more egregious patterns of harassment.

The harassing conduct must be so severe or pervasive that it affects a "term, condition, or privilege" of your employment. If you are able to ignore the harassing conduct, and it has no effect on your ability to continue performing your job, then a court might not consider the harassment to be sufficiently severe or pervasive to constitute a hostile work environment.

One particularly egregious comment may be so severe that the single comment, by itself, creates an illegally hostile work environment. Or a hostile work environment may be created when an employee is subjected over a period of months to a frequent barrage of less offensive comments, any one of which, taken in isolation, would not be considered "severe."

An unfortunate aspect of the law surrounding sexual harassment and hostile work environments is that an employee faced with "non-severe" harassment must endure that low-level harassment likely for a period of months before the harassment meets the legal standard for "pervasive" harassment, thereby triggering the protections of the law. To be blunt, the law does not do a good job of protecting employees who are subject to this kind of sporadic, lower-level harassment. So what is an employee to do when he or she is facing repeated, mildly offensive abuse on a regular basis?

2. Will I have to quit my job if I report sexual harassment?

You may be tempted to quit your job and just remove yourself from the unhealthy workplace and from your harasser, rather than report sexual harassment to HR. No one could fault you for wanting to do so. However, in most instances, quitting your job greatly reduces any leverage you might have had to bargain for the best terms for your departure from the employer, and weakens any legal claims you might have otherwise been able to pursue.

In the most extreme and egregious cases of harassment, the law might consider your resignation to be a "constructive discharge," which means that although you were not technically fired by your employer, your workplace was so intolerable that you were forced to resign. In such situations, the courts could treat your involuntary resignation as though your employer actually fired you.

It is preferable, however, not to have to rely on the "constructive discharge" argument. Don't make the employer's life easier by simply quitting. If you report a reasonable complaint of sexual harassment to a supervisor or to Human Resources, you are engaging in what the law refers to as "protected activity," and employers are expected to know that it is illegal to retaliate against employees who engage in protected activity. Of course, some employers will retaliate anyway, but in doing so they expose themselves to a legal claim of retaliation, which will put you in an even better bargaining position.

3. What can I do myself to fight back against sexual harassment?

What can you do other than continue to show up to work and endure the harassment? The most important thing you can do without anyone's help, and even without anyone's knowledge, is to document in detail every instance of harassing conduct.

I advise my clients to document workplace harassment using their personal email accounts (Gmail, Hotmail, etc.). No work email accounts! Your employer likely has the ability and the legal right to monitor your work email account without your knowledge.

I advise my clients to wait until they get home from work, then write an email addressed to themselves, using their personal email account, in which they describe in detail any harassing conduct that occurred that day, including what happened, who witnessed the conduct and how the witness reacted, and how the conduct made my client feel. Be sure to click send!

Sending the email to yourself (rather than just keeping a journal or writing the events on a Word document) will create a timestamp of when you recorded the information. Hopefully you will never need these timestamped records of the harassment you endured, but if you do, the fact that you recorded the events on the same day they occurred will make it far more difficult for the employer to argue that your recollection is not accurate or not credible.

These real-time records of the offensive conduct will be invaluable when the time is right to report the sexual harassment to HR, and in the event that you decide to pursue your legal remedies in court.

4. Why do I need a copy of my employer's policies regarding sexual harassment?

Most large employers have written policies that forbid harassment in the workplace. Most of these policies also include procedures employees are expected to follow if they want to report sexual harassment. These procedures typically allow the employee multiple avenues of reporting, such as to a direct supervisor, or to Human Resources, or through an email or telephone complaint process.

Before you decide whether to report harassment, be sure you have a copy (electronic or paper) of your employer's policies regarding harassment, retaliation, how to report harassment/retaliation, and how the employer promises to respond to such complaints. Keep your copy outside of the workplace, so that you still have access to it in the event your employment is unexpectedly terminated.

If you do not work in an office setting where you can easily access these policies through your employer's intranet, then you may need to be more resourceful. It is preferable to get a copy of these policies without tipping off management or HR that you are doing so, but sometime that is not possible. In the end, you need to get your hands on those policies so you can best determine how to move forward.

Even if your employer has written policies that provide multiple avenues for you to report harassment, however, you need to be aware of the risks involved in doing so.

5. Understand that HR exists to protect the company, not to protect you.

If there is one piece of information I want you to take away from this article, it is this: HR exists to protect the interests of the company, not the interests of the employee.

There are many wonderful HR professionals out there who will genuinely support employees who report harassment, and who will do their best to make sure the work environment is completely free from harassment. But if you pursue a sexual harassment complaint against your supervisor (for example) by reporting the conduct to HR, at some point in the process the company is going to have to decide whether they are siding with the complaining employee (you), or whether they are siding with the accused supervisor.

Upon receiving your complaint, HR will likely conduct an investigation (or hire an outside party to conduct the investigation) into your allegations. You will be questioned, the accused will be questioned, and any relevant witnesses should also be questioned. If any of the sexual harassment took the form of emails or text messages, HR should collect and review those materials.

At some point during or after the investigation, the company's management (not HR) will need to decide whether to defend the supervisor against your allegations, or defend you against the supervisor. If company management chooses to defend the accused supervisor, then management will direct HR to lead the charge in that defense against your allegations. At that point, your HR representatives, however sympathetic they may appear, are no longer interested in helping you prove the accuracy of your allegations of harassment. They are now defending the company against your allegations. That is what I mean when I say that HR exists to protect the interests of the company, not the interests of the employee (you).

How are you supposed to know whether HR will side with you or with your employer who is defending the accused? You cannot know for sure, but there are steps you can take to protect yourself throughout the reporting process, and to ensure to the greatest degree possible that you are not subjected to retaliation for reporting the sexual harassment to HR.

6. When should I report sexual harassment?

Now that you know how your employer expects you to report harassment, are you ready to report? Maybe yes, maybe no. The timing of your complaint is incredibly important.

As discussed above, for sexual harassment to reach the level where it creates an illegally hostile work environment, it must be sufficiently severe or pervasive. That means that a few isolated incidents of inappropriate conduct-even unquestionably unwelcome conduct that is undeniably based on your sex-may still not be sufficiently "pervasive" to create a "hostile work environment" as defined by the law.

There are risks in rushing to HR to report incidents of sexual harassment, even when you have no doubt that the conduct was based on your sex, and you made clear that the conduct was unwelcome. The employer may be able to conduct an investigation and perhaps justifiably conclude that no illegal harassment occurred, because the harassment was not sufficiently "pervasive." (Whether the employer should address even isolated incidents unwelcome conduct anyway is a different question--I think they should, but the law does not necessarily compel them to). If you report isolated incidents of minor harassment, and HR's investigation concludes that no illegal hostile work environment exists, you are now more vulnerable to retaliation for having reported your concerns.

If the harassment is not severe, or has just recently begun, your best first approach may be to confront your harasser directly, tell them their conduct is offensive, and demand that he or she stop the offensive conduct. (and then document your actions.) This is a much easier proposition if the harasser is a co-worker rather than a supervisor. You must also consider whether you have any concern that such a confrontation might endanger your personal safety. If you have a gut feeling that a confrontation could be dangerous, listen to your gut and do not do it!

There are also risks in waiting too long to report harassment. If the harassment you are enduring is affecting your job performance, then you might be subject to negative performance appraisals, or even placed on a performance improvement plan. If you wait too long and allow performance issues to continue, you may be fired. You certainly do not want to wait to report until after the decision to fire you has been made, especially when your performance issues were a direct result of the harassment you tried to endure in silence. Once an employer makes the decision to fire you, they seldom reverse that decision, even if you subsequently report harassment.

There are other risks in waiting too long to report harassment, including missing deadlines for seeking legal relief. These deadlines are imposed by law, not necessarily by your employer. For instance, before you can file a lawsuit in court in which you allege sexual harassment, you must first exhaust the administrative remedies available to you. That means filing a charge of discrimination with the Equal Employment Opportunity Commission or with an analogous state agency.

Timely filing is mandatory. You must file the charge of discrimination usually within 180 or 300 days of the date of the most recent episode of harassment, or of the date you were fired, demoted, or faced some other adverse employment action. If you are a federal employee, you likely only have 45 days to report the harassment to your agency's EEO office. If you miss these deadlines, you may be barred from pursuing your sexual harassment claim in court, and will no longer have the bargaining position that such a potential legal claim provides.

You do not need to report harassment to HR before you file a charge with the EEOC or an analogous state agency. Nevertheless, be wary of delaying the reporting harassment, even if the harassment seems to have stopped, or even if the harassing employee has left the company. You may still need to protect your rights by reporting the harassment you endured, whether the report is made to HR, to the EEOC, or both.

7. What if there is no HR Department? What if my harasser owns the company? What if there are no written policies?

What if you are employed by a small company that has no formal HR department, and no written guidance on how to report harassment? Or what if the person who is sexually harassing you is the owner of the company?

In these circumstances, reporting harassment is likely a more perilous decision than it would be in a company with formal harassment policies and leadership who can fire your harasser. There is little chance that you can report the harassment to anyone and expect the problem to be remedied. The more likely outcome is that you will be fired, or your working conditions made intolerable until you decide to quit.

There is no generalized advice that can be applied to these situations. You can still protect your legal rights and take steps to put yourself in the best position to move beyond this harassing workplace, such as documenting the harassment and filing a charge of discrimination with the EEOC. You might also need to threaten credible legal action before such an employer will take you seriously. However, you need to prepared for the possibility that you will be fired soon after you report the harassment, even though such a retaliatory termination would expose the employer to even greater legal liability.

8. Report sexual harassment, but do it in the right way, at the right time.

What is the bottom line? If you are enduring severe or pervasive sexual harassment that is negatively affecting the terms or conditions of your employment, should you report it to HR?

In most circumstances, we advise our clients to report the harassment, although we also advise them how, when, and to whom to report the harassment, which can vary greatly from case to case.

If the sexual harassment is not particularly severe, or has just recently started, then your best approach may be to address the offensive conduct directly with the harasser. If that does not solve the problem, you are in a better position if you do decide to report the harassment to HR. Whether to confront your harasser depends on a number of factors that are unique to your situation, so that is something we would discuss in detail with our client before advising that course of action.

If an employer has written policies regarding harassment, and specific procedures for reporting the harassment, then at some point the employee should probably follow those procedures (assuming they are reasonable) and give the employer the opportunity to promptly investigate and address the harassment. Employees are not required by law to report harassment, and employees may have personal or strategic reasons not to do so. However, if an employee fails to report the harassment, he or she risks damaging any potential future legal claims he or she could otherwise assert against the employer.

Before you take that leap and report the harassment, make sure that you are fully aware of the risks and potential pitfalls involved, and make sure you are protecting your legal remedies and maximizing your bargaining position.

Peter M. Whelan is a Washington, D.C. sexual harassment attorney at Bernabei & Kabat PLLC. He represents employees facing sexual harassment in the workplace and employees suffering retaliation for reporting sexual harassment at work.

 

 

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