Sexual Harassment in the Workplace: How to File a Complaint and Prepare for the Emotional Fallout
Workplace sexual harassment is illegal, but most cases go unreported. Here’s why, and what you can do if it happens to you.
By Jeanie Lerche Davis
Medically Reviewed by Kacy Church, MD
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When the #MeToo hashtag emerged for the first time on Facebook in October 2019, in the span of 24 hours alone it was used by more than 4.7 million people in 12 million posts. Clearly, this hit a universal nerve and truth so raw that was bubbling just below the surface and waiting to explode: Women (and men) are fed up with being sexually harassed in the workplace and are not willing to keep quiet about it anymore.
If you’re one of the millions who’ve endured unwanted sexual advances or crude comments — which the U.S. Equal Employment Opportunity Commission (EEOC) says constitutes an unlawful act in the workplace — you have a right to file a complaint, and a right to work in an atmosphere where you feel safe.
We went to the country’s top experts in the field of sexual harassment — including employment and sexual harassment attorneys Gloria Allred and Neil Mullin — as well as to women who’ve been victims of harassment who bravely shared their stories, to weave together a guide that will walk you through the basics on gathering evidence, the role of your HR department, how to file a complaint, and finally how to be prepared for the social and emotional fallout that often comes from speaking out. — Maureen Connolly, Editor in Chief
The year 2019 will go down in history as the beginning of the end of people in positions of power taking advantage of it in the form of sexual harassment.
The Equal Employment Opportunity Commission defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” It is considered unlawful.
This new spotlight on an old issue has caused both women and men to do some soul-searching. Is it time to disclose that incident of a few days ago? A few years ago?
Employees have long struggled to figure out exactly how to handle unwanted advances or words that made them uncomfortable. There may be offers of a job in return for sex (called "quid pro quo"). Or maybe it was a “hostile work environment,” which is much more common.
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The Legal Rundown on Sexual Harassment
“Sexual harassment is a pervasive problem,” says Gloria Allred, a women’s rights attorney and founder of the Allred, Maroko & Goldberg law firm in Los Angeles. Allred is defendingApprenticecontestant Summer Zervos in her defamation of character lawsuit against President Donald Trump, and a documentary about Allred's four-decade career defending women from systemic and personal injustices,Seeing Allred, will stream on Netflix on February 9, 2019.
“Many women have suffered and been afraid of retaliation if they reported it,” she explains. “They didn’t know an attorney, so they just suffered in a no-win situation in which they can lose their jobs.”
Sexual harassment is a form of sex discrimination and interferes with the employee’s right to enjoy equal opportunity, she adds. “That’s why it’s against the law. In many cases, it’s also an abuse of power.”
But for this to be unlawful, the harasser need not be in a position of power in the workplace. He or she can be “the victim's supervisor, a supervisor in another area, a coworker, or someone who is not an employee of the employer, such as a client or customer,” according to the Equal Employment Opportunity Commission.
Also, both victim and harasser can be either a woman or a man, and the victim and harasser can be the same sex.
“The law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted),” the EEOC website states.
How Sexual Harassment Looks in the Workplace
Employment attorney Neil Mullin is cofounder of Smith Mullin, PC, based in Montclair, New Jersey. He and his partner, Nancy Erika Smith, successfully represented former Fox News anchor Gretchen Carlson in her sexual harassment case against the company’s chairman and CEO, Roger Ailes.
In today’s workplace, sexual harassment cases involve a range of abusive behaviors. There may be groping, grabbing, or crude remarks that make life miserable for the employee.
“In many cases, it’s the supervisor making crude references to a woman’s body, a supervisor running porn on a computer that’s easily seen by female employees, or posting a crude drawing,” he explains. “Locker room talk is not acceptable in the workplace,” says Mullin. “The b-word and c-word are not acceptable in the conference room.”
In courts, the standard for sexual harassment is “when a reasonable person would feel offended, when it’s directed at them because of their gender,” he says, which leaves it open to interpretation.
Federal courts make it more difficult to prove sexual harassment, while state and city courts are more progressive, he adds.
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What You Should Know Before Filing a Sexual Harassment Complaint
If you decide to file a complaint, how can you best prove your case — and what can you expect from your company’s most likely place to complain to, human resources (HR)? Is there any chance of retaliation? Could you lose your job?
“Consult an attorney before doing anything,” advises Allred. While there’s a statute of limitations for filing a lawsuit, even an old incident could still carry weight without a lawsuit. “We have a lot of confidential settlements,” she says.
Document and Gather Evidence of Your Harassment
If you believe you’re being sexually harassed, write down what is happening, and save any evidence you have of your harassment. If you feel safe doing it, you do have the option of telling your harasser to stop.
Tell your harasser to stop.“Tell them their behavior makes you uncomfortable,” says Grace Choi, cofounder of BetterBrave, a website for victims of sexual harassment. “Be firm, and be specific. Say something to this effect: ‘The remarks you make about my outfits make me uncomfortable. Please stop making those comments.’ Do not apologize. Document exactly what happened. Your notes are a critical component if things escalate.”
Gather evidence.If you have notes, emails, or texts from the harasser, make copies. Take screenshots. Print them out. Don't delete them, advises Donna Ballman, an employment attorney in Fort Lauderdale, Florida, and author of the bookStand Up For Yourself Without Getting Fired. Keep everything in a safe place. A briefcase or purse is best. Take them home.
In some states, you’re allowed to secretly tape what a person is saying. “You can get his ugly words on tape,” says Mullin. Use your cellphone to get any photographic evidence.
If any offers, threats, or comments are being made, write down the date, time, place, and any witnesses. Don't worry if there are no witnesses. Don’t worry about "he said, she said." Your story does count in a court of law. “Your testimony is your proof,” Ballman says.
“Your testimony is proof and it may be believed,” adds Mullin, “but corroborating evidence is even better.”
Don’t quit your job — yet.“A lot of people jump the gun and quit, which damages their case,” says Ballman. “If you don’t complain to HR and give them the opportunity to correct the situation, you lose your right to legal action. Your job will not be protected.”
Consider Carefully How to Approach Human Resources
This surprises many employees, but according to the experts quoted here, HR’s role is not to protect you, the employee. HR will only protect the executives, managers, and the company.
“In my experience with filing hundreds of sexual harassment cases, it’s very rare that HR will do the right thing in sexual harassment cases,” says Mullin. “They are supposed to conduct an investigation, but they typically treat the victim like a criminal. They may try to get a statement that compromises your position if you decide to file a lawsuit. They may require you to confront your harasser. Those things should never happen,” he says. “That’s why you need a lawyer.”
Find a Plaintiff’s Employment Lawyer to Protect Your Rights
It’s important to protect yourself in case HR is ineffective or in case of retaliation due to your complaint. Your performance reviews could suddenly turn negative, for example. You must protect your right to sue if things at work don’t improve.
A lawyer will educate you on your options to sue, on the city or state level, or with the EEOC. “You need a lawyer before you approach either HR or the EEOC, because there are a thousand ways they can screw up your case,” says Mullin.
The type of lawyer who represents clients in sexual harassment cases is called a “plaintiff's employment lawyer.” Your lawyer will guide you through the process of filing a complaint to HR and will put pressure on HR to come up with a good resolution — which is to fire the harasser or suspend them, or move the harasser away from victim. And they will advise you on when a lawsuit is the next step in protecting your rights.
The National Employment Lawyers Association (NELA) has local chapters in all 50 states. Most NELA members work on a contingency basis, and they don’t charge anything up front. These lawyers are deeply committed to fighting sexual harassment.
Check your company’s internal policy on sexual harassment.Your lawyer will need this, as well as your employee handbook. You must follow the company’s policy to the letter.
Here’s the bad news: At hiring, you may have signed papers that relinquish your right to a jury trial. It’s called a mandatory arbitration agreement, in which you agree to arbitrate in a private, sometimes confidential, proceeding. This diminishes your rights but doesn’t completely eliminate them.
“This is all for an employment lawyer to sort out,” Mullin adds.
“Up to 80 percent of women lose their case in arbitration. When they win, they get much lower financial awards than when they go to trial,” says Mullin. The good news: Nancy Erika Smith is working on Capitol Hill now to get bipartisan support of a bill that eliminates mandatory arbitration of sexual harassment claims.
When It’s Time to File a Sexual Harassment Lawsuit
When it becomes intolerable to work for your employer, you can file a lawsuit. Your lawyer will guide you through the options on the federal, state, and city level. “The laws vary from state to state, city to city, and [in those lower courts] plaintiffs have done very well,” says Mullin.
Know the filing deadlines. The filing deadlines for a sexual harassment lawsuit vary with every agency. For example, you must file a charge of discrimination with the EEOC within 180 days from the day the discrimination took place, or you will lose the right to sue under federal law. In some states, you may have to file with the Fair Employment Practices Agency. An employment lawyer will guide you on these deadlines, and also advise on handling cases that occurred in the past.
You may negotiate a settlement.You likely won’t have to go to court at all, Mullin says. “Your lawyer can push HR to fire the bad guy so you can work in peace. Or you can leave the workplace with a decent severance and a good reference, which is very frequently the resolution.”
The Start of a Wonderful New Era for Women?
If you’re being harassed by a coworker or supervisor, your first instinct may be to do nothing about it, says Mullin. But remember that you’re standing up for your own rights, and you’re preventing the offender from harming other women (or men).
“I’ve seen the emotional and physical toll [the abuse] takes on women,” he explains. “It’s been hard for women who have come forward. They may be ostracized in the workplace, as there will be employees who don’t believe the accusations.”
He believes things are changing for women. “We’ve had the Women’s March on Washington. Women are running for public office. It’s wonderful thatTimemagazine has chosen those brave women as Person of the Year. It’s a wonderful new era for women.”
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Important: The views and opinions expressed in this article are those of the individuals quoted and not Everyday Health. They are published here for informational purposes only and do not constitute legal advice.
Video: Knowing your rights: Sexual harassment in the workplace
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