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.

Thursday, March 9, 2023

How Do I Prove Sexual Harassment?

In my 36 years of experience representing employees I’ve found that retaliation seems to be the norm rather than the exception when it comes to sexual harassment. Women (and men) are justifiably afraid to report sexual harassment. Still, sexual harassment is not about sex. It’s about power. If you don’t speak up about a sexual harasser, he or she will keep doing it and accelerate their behavior, as we've seen in some of the big celebrity cases that have come out during Me Too.

Usually, a single incident doesn’t equal a lawsuit unless it's really severe. For it to be sexual harassment under the law, the harassment must be so severe or so pervasive* that it alters the terms and conditions of your employment. Still, you aren’t helpless when it comes to sexual harassment. You can fight a sexual harasser and win. No doubt, proving sexual harassment can be difficult, because it is usually your word against the harasser’s. Still, you shouldn’t just continue to be sexually harassed without taking action. Here are some steps you can take if you’re the victim of sexual harassment at work:

Document any quid pro quo: One type of harassment is called quid pro quo sexual harassment. That’s where you are offered a job, promotion or favors if you submit to the harasser, or are threatened that you’ll be demoted, fired or disciplined if you don’t submit. If any offers or threats are being made, write down the date, time, place and any witnesses. Don’t worry if there are no witnesses. Harassers are usually too smart to do it in front of others. Your testimony is evidence. Your notes are evidence.

Document any comments and different treatment: The other type of sexual harassment is called hostile environment. That’s where you’re being harassed due to your gender. This could be comments about your gender being inferior, sexual comments, or treating people of your gender differently than the opposite sex. If the harasser is making comments or treating you differently, they may also be targeting others of your sex. Watch carefully and take good notes. Again, include date, time, place and any witnesses. If it’s just you, then still document it.

Keep your notes in a safe place: Don’t put your notes on your work computer, in a desk drawer or somewhere where the employer can take them. Keep them in your jacket pocket, purse or briefcase, or write them on your home computer. If you’re fired, they’ll prevent you from taking your notes and they may be conveniently “lost.”

Gather evidence: If the harasser is texting, emailing or sending cards or notes, keep copies. Don’t delete them. Make sure you take a screen shot of any texts and print them so you don’t lose them if your device crashes or you buy a new one. Print emails and keep them in a safe place.

Report it: You should report the sexual harassment. Make sure you’ve followed the company sexual harassment policy and reported it to the correct person. They should have alternate people to report it to in case one of them is your harasser. I suggest reporting it in writing. If you’ve only reported it verbally, follow up in writing. Something like, “This will confirm our conversation on April 15, 2023 in which I reported sexual harassment by my supervisor John Doe. I reported the following instances of sexual harassment to you: [list them]. Please take prompt action to investigate this matter and address this situation."

File with EEOC: If you’ve already reported it and they won’t take action, and your employer has at least 15 employees, then filing with the United States Equal Employment Opportunity Commission is the next step. Filing with them is a prerequisite to filing a lawsuit for sexual harassment. 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 EEOC. That isn’t so say they won’t still retaliate, but if they do you can report the retaliation to EEOC and possibly sue. If your employer is too small for EEOC, some states and local governments cover smaller employers. Here in Florida, Miami-Dade, Broward, Orange, Lee, Pinellas, Hillsborough, and Palm Beach counties cover employers with 5 or more employees. You would file with the agency that covers the smaller employer in that case.

 Contact a lawyer: Contact an employment lawyer in your state who understands sexual harassment and that it is frequently your word against the harasser’s.

Get the heck out: In the meantime, if the company won’t do anything and you don’t feel safe, start looking for another job. Don’t let the harasser bully you out of a job before you’re ready, but don’t feel trapped either. Sometimes a sexual harasser will work on your head and make you feel like nobody else would want you. Don’t believe them.

Remember, sexual harassers are like rapists. It isn’t about sex – it’s about power. If nobody stops them, their behavior accelerates. If you don’t report it, there will be other victims, and the behavior will get worse. Stand up for your right to a safe workplace. Your employer has a duty to keep your workplace free of sexual harassment. It’s the law.

*Yes management side - that's an "or" not an "and" so stop saying "and" because that's just stupid. "And" would mean that the victim had to, for instance, be sexually assaulted on the reception desk by their supervisor in front of coworkers multiple times in order for it to be sexual harassment, and surely you aren't going to try to argue that one. One severe incident is enough. Multiple less severe incidents count too.

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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.