Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, August 12, 2016

Follow Trump's Advice, Lose Your Sexual Harassment Case

By now you've probably heard Donald Trump's advice to sexual harassment victims: just quit your job. The problem with this (besides the fact that not everyone is a billionaire who can quit without having a job lined up) is that if you do quit, you may well give up your right to sue for sexual harassment.

You see, the Supreme Court, in its infinite wisdom, says that if your employer has a published sexual harassment policy, you have to report sexual harassment according to the policy and give them a chance to fix it. Only if they don't fix it, or if retaliation occurs, can you then sue.

Quitting makes things even more difficult. In order to sue for lost wages, you have to show that you were forced to quit. In legal terms, that you were constructively discharged. If you quit, you have to prove that the workplace was so awful due to retaliation or sexual harassment that no reasonable person would stay. When you have a jury of unemployed folks and people working minimum wage jobs with abusive bully bosses, that's going to be a tough thing to convince them.

Also, if you just quit then the harasser will continue their harassment. They'll just pick another victim. So if you don't report it, don't file with EEOC, and say nothing, you guarantee another employee will be sexually harassed.

Here's what you have to do if you want to stop a sexual harasser:

a. Read your handbook: There should be a sexual harassment policy. If it isn't there, the employer is also supposed to have a poster in the break room or other prominent area saying how to report it.

b. Report it in writing: If there's an 800 number, forget that. Report it in writing to HR or someone in management. Otherwise, HR will deny you reported sexual harassment. They'll claim you reported "unfair treatment" or something else not legally protected against retaliation (if they admit you reported anything at all).

c. Tell a coworker: If you don't tell others who work with the harasser what is happening to you and that you've reported it, then the harasser may well move on to an easier victim. The NLRB says your employer can't prohibit you from discussing sexual harassment with coworkers (assuming you aren't a supervisor or in management).

d. Keep notes: Write down each instance, with dates, what happened and names of witnesses. Keep copies of texts and emails. Keep your notes and evidence at home so they can't take it away and conveniently lose it if you're fired.

e. Don't wait: You have either 180 days or 300 days from the sexual harassment to file with EEOC if they don't fix the situation. Don't delay.

f. Talk to a lawyer: If you think you have a sexual harassment or retaliation claim, talk to an employment lawyer in your state.

Don't follow Trump's advice. Don't let a sexual harasser drive you out of a job unless you have another job lined up.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.