By: Brooke Lum
Sexual harassment is, unfortunately, a harsh reality for many people. Recently, more survivors have been coming forward in the wake of the #MeToo movement. It has become especially prevalent in workplaces. While many wait to come forward and seek legal action against their employer, it is crucial to do so to maintain accountability. While pursuing legal action, some may wonder if they have a strong enough case to be compensated for the damages caused by assault. This is why going through the necessary steps to build a strong case is incredibly important to hold employers accountable.
Understanding What Legally Counts as Sexual Harassment
Workplace Sexual Harassment vs. Quid Pro Quo Harassment
Understanding the strength of a workplace sexual harassment case starts with understanding the nature of the harassment. Most workplace sexual harassment cases typically fall into the categories of hostile work environment or quid pro quo harassment, which are both illegal under Title VII and FEHA.
A hostile work environment is when unwelcome conduct based on sex becomes severe or pervasive enough to create an intimidating, offensive, or abusive workplace. Examples of this can be offensive comments or sexual jokes, displaying inappropriate images in the workplace, or inappropriate touching. Workplaces can be liable if this behaviour occurs, if they do not properly address the problem. Many companies have training or systems in place for when harassment occurs. Companies would not be liable for harassment if the harassment is filed as a complaint to HR and the company immediately investigates and punishes the harasser while implementing training to prevent future harassment from occurring. This shows a clear initiative to combat workplace harassment and prevent it from occurring again. A company might also not be liable if the harassment is unknown. This is why victims must report the harassment to HR in order to give the company an opportunity to correct the problem.
Quid pro quo is Latin for this-for-that. This is a type of workplace harassment that occurs when an employee with a degree of power threatens to punish another employee if they do not perform sexual acts. This can also be in the form of rewarding an employee for performing sexual acts. It is a common misconception that this form of sexual harassment occurs only if the harasser is a supervisor. In reality, any employee who has workplace control can become a harasser. For example, an employee who manages scheduling can threaten worse or better hours for sexual acts. The only requirement for quid pro quo harassment is that it requires a direct link between submission to harassment and a job action. If quid pro quo harassment occurs, a company is immediately liable, regardless of whether HR knew about the harassment.
Before going to HR, it is important to understand what rights are given to employees through company policy and what rights are given to workers by the state. There are many protections in place for employees at the federal level. The EEOC- Equal Employment Opportunity Commission- protects workers from discrimination, harassment, and retaliation in the workplace. Alternatively, many states have their own workplace policies that often provide more protections for workers. In the state of California, FEHA- California Fair Employment and Housing Act- prohibits workplace discrimination under California Law.
III. Key Elements of a Strong Case
- Detailed Documentation
Documentation is vital to the life of a case. Recording dates, times, and specifics of each incident can ensure companies are held accountable and prevent companies from diminishing the case with unknowns. Documentation can be anything from recording the when, where, and what of the harassment, to documenting potential witnesses and who of an HR team the complaint was filed with. Having lots of documentation makes it easier for external legal teams to support victims of harassment and ensure compensation for damages.
- Internal Reporting
Filing a complaint with a company’s HR team or supervisor creates a paper trail showing the employer was aware of the harassment. In the cases where the employer does not effectively address the complaint, it is important for courts to understand that the employer was given the opportunity and was aware of the harassment, and still chose not to protect its employee. Ensuring a company is aware of workplace harassment is one of the most important steps in building a strong case because it gives the employer the opportunity to act, and if that action is not taken, then a legal case can be made. Alongside reporting, one should document the filed complaint as well as when the complaint was filed, and who filed it.
- Corroboration & Witnesses
Being able to identify witnesses to workplace harassment, or other employees who can corroborate your experience, will ensure that companies do not diminish the complaint due to little proof of the harassment. By providing evidence of a pattern of misconduct, victims can strengthen their case against the harasser and the continued ignorance of the company.
- Proof of Retaliation or Adverse Action
Retaliation can occur in various ways. It can be demotions, termination, or workplace exclusion after reporting, and it can be caused by employees in many different positions. By gathering proof of retaliation by documenting the when, what, and who of any negative job action can help provide legitimacy to an employment lawsuit. Retaliation is a separate violation under federal and state law from harassment, which is why is important to document the situations of both harassment and retaliation.
- Employer Negligence
While working with an HR team may feel useless when the team prioritizes the company over the employee, it is an important step to prove that the company failed to act promptly and effectively, even when aware of harassment. A company can still be liable even when there is no formal complaint filed. A company becomes liable when it knows of harassment in the office and ignores, minimizes, or covers up complaints regarding the harassment.
- External Reporting & Legal Steps
- Filing with the EEOC
In cases of Sexual Harassment, one can bring the complaint to federal attention and is protected to do so under the Equal Employment Opportunity Commission, or the EEOC. This federal agency serves to protect employees from discrimination in the workplace, which includes sexual harassment.
- Receiving a Right to Sue letter:
A Right-to-Sue letter is an official notice issued by the Equal Employment Opportunity Commission (EEOC) or a state agency such as California’s Department of Fair Employment and Housing. This letter follows up on complaints filed with the government organization and gives employees the legal authorization to file a lawsuit against their employer in court. This letter typically also requires completing or opting out of the agency’s investigation process. Once a Right to Sue letter is received, employees can begin to look for legal counsel to further the lawsuit process.
- Role of legal counsel in pursuing civil litigation.
Legal counsel can make the lawsuit process significantly easier for employees, because they have a professional of the law as an active advocate working in the employee’s best interest. It is important to look for a law firm or attorney who has practice in employment law.
- Common Mistakes That Can Weaken a Case
There are common mistakes when it comes to handling a case that can result in losing a lawsuit or not being fully compensated for the damages of the case. Common mistakes include not documenting everything. Documentation is crucial to proving the legitimacy of a case. This can include not documenting the who, when, where, and what of a workplace harassment incident, or even failing to provide potential witnesses to the harassment. The employer will try to delegitimize a case so that they are not held responsible for their own mistakes, which is why proof of events through documentation is vital to the life of a case.
When it comes to documentation, filing complaints with physical documentation rather than a verbal complaint makes it harder for HR teams to ignore complaints. Furthermore, if an HR team fails to act, the physical documentation with the dates of when the complaint was filed and received by the HR team, as well as the HR employee who handled the case, can make it easier for an employee’s legal team to sue the company for ignoring harassment. This is because it is physical evidence that the company knew of the harassment through he complaint, and still failed to act, choosing not to protect its employees.
Employees have protected rights that make workplace harassment and discrimination illegal in the eyes of the law. When a company ignores these laws, it can create an uncomfortable, unproductive, and even harmful workplace environment. In order to protect oneself in these workplace sexual harassment incidents, it is important to document everything, consistently report incidents to one’s employer and government agency, and seek legal help. Contact our team of experienced employment attorneys to discuss your options.
