After news broke of high-profile men such as Harvey Weinstein, Matt Lauer, Charlie Rose, and many others allegedly behaving inappropriately, sexual harassment in the workplace has been top of mind for many.
It can be tough to decide what to do if you find yourself in a situation where you’re being sexually harassed. We chatted with Eric M. Sarver, an employment law attorney and founding member of The Law Offices of Eric M. Sarver, to get some answers.
Here’s what to do if you’re sexually harassed at work and how to proceed if you decide to take the matter to court.
What is sexual harassment?
The Cheat Sheet: What qualifies as sexual harassment?
Eric Sarver: Most courts adopt the EEOC’s definition of workplace sexual harassment — which can take the form of a “hostile work environment” or “quid pro quo” sexual harassment. The law and the courts define a hostile work environment as:
Unwelcome sexual advances — or conduct of a sexual nature — in the workplace (can also include conduct outside of the physical workspace, such as at an evening office holiday party, networking event, or even off-the-clock sexually offensive behavior) by a supervisor, co-worker, or other worker, which (a) unreasonably interferes with the employee’s performance of their job, or (b) creates an intimidating, hostile, or offensive work environment.
Next: Are you working in a hostile environment?
Is your work environment hostile?
The Cheat Sheet: How do courts decide if a work environment is hostile?
Eric Sarver: When deciding whether conduct of a sexual nature against an employee rises to the level of a “hostile work environment,” the courts use a two-pronged subjective and objective standard. The plaintiff must show that (1) He or she subjectively believed the conduct was hostile, abusive, or offensive, and (2) that a “reasonable person” in the employee’s position would objectively believe the conduct was hostile, abusive, or offensive.
Next: Not sure if what you’ve experienced counts as harassment? Find out what the courts look at.
Is it harassment?
The Cheat Sheet: What other factors will a court look at?
Eric Sarver: In viewing the “objective” and “reasonable person” component of a sexual harassment claim, courts will look at factors such as:
- Whether the conduct was verbal, physical, or both
- Frequency of the conduct
- Whether the conduct was hostile or patently offensive
- Whether the alleged harasser was a co-worker or supervisor
- Whether others joined in perpetrating the harassment
- Whether the harassment was directed at more than one individual or singled out the victim, and
- Whether the conduct was persistent, debilitating, or severe
These are all factors upon which a court can find that an employer is liable for sexual harassment — a form of gender discrimination—in violation of federal law (Title VII of the 1964 Civil Rights Act, as Amended), and (likely) in violation of that state’s corresponding anti-discrimination statutes.
Next: Women aren’t the only victims.
Sexual harassment happens to women and men
The Cheat Sheet: How else can sexual harassment play out in the workplace?
Eric Sarver: Sexual harassment can also be “quid pro quo” — as in when an employer, supervisor, or co-worker insists that an employee respond to or engage in sexual conduct, in exchange for keeping their job, maintaining their position, or as a condition for getting a promotion or benefit.
Keep in mind that sexual harassment can be against men or women — the gender of the victim is not relevant to the determination of what constitutes workplace sexual harassment. The harassment can even be towards another co-worker, but if the sexual remarks offend you (as per the standards and criteria mentioned above), they may rise to the level of a hostile work environment as well.
Next: Gathering the evidence
Documenting the harassment
The Cheat Sheet: What should an employee do if he or she is being sexually harassed in the workplace?
- Keep a private journal. As with any other form of workplace discrimination, the facts of what happened – including people, places, dates, and events — will be pertinent — both in the reporting process, and to eventually prove your claim (if you eventually choose to go to court). Include dates, people who were present, list of names of those whom you reported the harassment (or who may have seen it happen), where the harassment occurred, what occurred, etc. Don’t worry if there are no witnesses, you can still keep good records of what occurred.
- Keep your notes in a safe place. Don’t place them on your work computer, in a desk drawer, or somewhere your employer can take them. Instead, keep them in a private place. This is especially key in case you are fired, and prevented from taking your notes from your work computer or from your desk drawers at work.
- Gather your evidence. If the harasser is texting, emailing, or sending cards or notes, keep copies. Don’t delete them. Make sure you take a screenshot of any texts or Snapchats and print them, so you don’t lose them if your device crashes or you buy a new one. Print out emails, too, and keep them in a safe place.
Next: Who should you tell?
Reporting the harassment
The Cheat Sheet: What else should an employee do?
- Report the harassment at work. Make sure you’ve followed the company sexual harassment policy, if there is one. Generally, I recommend reporting any form of workplace sexual harassment in writing to the human resources department, your supervisor, boss, or owner/head of the company—or some combination of all the above. If your supervisor is the one harassing you, you might want to report to the other sources listed, and seek their intervention.
- File a complaint with the EEOC. If you’ve already reported harassment at work and the employer won’t take action, filing with the Equal Employment Opportunity Commission is the next step. Depending on your state, you have 180 or 300 days from the date of discrimination to file. You are protected from retaliation if you file a charge of discrimination with the EEOC. You can request that your EEOC Charge is dually filed with your state’s human rights agency.
- Find a qualified employment law attorney. I’d suggest contacting an employment lawyer in your state to see if you can get someone who understands sexual harassment. Quite often, the presence of a lawyer on your side can scare the employer into taking your complaints very seriously.
Next: Why confronting your harasser may not be a smart move
You don’t have to confront your harasser directly
The Cheat Sheet: Is it always necessary to speak to the harasser about the behavior before taking further action?
Eric Sarver: No. If you do say something in writing to the harasser — noting you find their sexual comments, behavior, or actions to be offensive and inappropriate, and asking them to stop — then it becomes more difficult for them to try to argue that any sexual “situation” was mutual, or they were unaware of the offensive nature of their conduct. In addition, many states have laws, under which individuals (co-workers, managers, etc.) can be held civilly liable (the federal law, Title VII applies to the employer as an entity).
If you believe the harasser will escalate, continue, or retaliate if you complain, then it may be wise not to speak with him or her directly — especially if they’re in a position of authority, where they may attempt to terminate you under some false pretense you engaged in misconduct or poor performance at your job.
Next: Is it time to call a lawyer?
Taking legal action
The Cheat Sheet: At what point should legal action should be taken?
Eric Sarver: You might wish to take legal action if, after reporting the sexual harassment to your employer, no action or remedy is taken. If the harassment continues after you have reported it, that may be an indicator your employer is condoning the sexual harassment, at which point you would want to take legal action.
Another time legal action should be taken is if you believe or are concerned that your employer will unlawfully retaliate against you, for internally reporting sexual harassment. Thus, if you have seen or heard of other employees at your company getting fired shortly after they internally reported discrimination at work, or if your harasser has threatened you with termination, then you might want to file a Charge of Discrimination, hire an attorney, or both.
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