“Proclaim the truth and do not be silent through fear.”
St. Catherine of Siena
If you are a victim of sexual harassment, it’s easy, right? Just read your company’s sexual harassment policy and make a complaint. Everything will be fixed, just like it says in the company handbook. If life were so simple.
Those of us who live in the real world understand that bullies do not like being called out. We learned this long ago — on the playground, or the bus to school, or on the street. Either deal with the abuse or risk something worse by speaking up.
We like to believe that this dynamic changed when we became adults; but it didn’t. To the contrary, children are typically more open to expressing themselves than adults, who often accept their toxic environments without complaint.
Women in the workplace face a dilemma: either report sexual harassment and risk retaliation, or “deal with it,” try to avoid the harasser, and hope it goes away. Neither choice is easy.
THE LAW PUNISHES WOMEN WHO STAY SILENT
The law requires women to “take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This means that if your company has a sexual harassment reporting policy, and you fail to report harassment as stated in the policy, you could end up being victimized twice: first, at the hands of your harasser; and later when you are left without a remedy by the courts.
In deciding whether to allow a claim to go forward, courts look at the reasonableness of a woman’s efforts (or lack thereof) to report misconduct and avoid further harm. The United States Supreme Court has held that “proof that an employee failed to exercise reasonable care to avoid harm … will normally suffice to satisfy the employer’s burden…”
Under this standard, victims of sexual harassment too afraid to come forward will find themselves trapped in a hell-like place where they have no way of redressing the harm they have suffered.
Modern courts understand the hard choice women face when deciding whether to report sexual harassment. They allow certain cases to go forward despite a woman not following her company’s sexual harassment reporting procedure. In a recent case, a court noted that the plaintiff’s belief that complaining would result in retaliation was reasonable: she reasonably feared her supervisor’s hostility and retaliation by having her fired, and her belief that reporting would be futile was reasonable because others knew of his conduct, yet it continued. These factors were aggravated by her pressing financial situation.
DO NOT STAY SILENT — SEEK HELP
Do not leave your future to chance. If you do not speak up or seek help against your harasser, you will leave your fate to the whims of the court system. “Hoping” that your judge will be the one who finds that your failure to report under your company handbook was reasonable is not a good strategy.
Here is what you should do when faced with sexual harassment in your workplace:
- Read your employee handbook or manual; highlight every section that may apply to sexual harassment, discrimination, reporting, and the like.
- Gather and maintain evidence to support your position; examples include emails, audio and video recordings, notes, witness statements.
- Determine if there are other victims that will support or corroborate your experience.
- Consult legal counsel: many lawyers will discuss your situation via a free consultation or a limited charge; depending on your case, many lawyers will pursue the matter for you on a contingency fee basis.
- Keep a diary or chronology of what is happening so that events remain fresh in your mind over time.
- Report the harassment under the procedure in the handbook unless there is a situation where that would be futile or otherwise untenable.
- Consider filing a charge of discrimination with the EEOC; this, like reporting harassment to your employer, is “protected activity” which will insulate you from illegal retaliation by your employer.
ON THE FLIP-SIDE: ADVICE FOR EMPLOYERS
Employers routinely make grandiose statements about their “progressive” and “inclusive” workplace policies. Much of it is just PR. But PR is no longer good enough in the #MeToo era. Employers must provide a workplace free from harassment and discrimination or suffer the consequences. Lately, those consequences have been multi-million dollar jury verdicts and settlements.
Here is what employers should do to start 2019:
- Review your company handbook cover to cover and determine if you need to make changes to either align with your current structure or comply with new laws.
- Take a moment — or more — to conduct a self-audit of your workplace to understand if there is an existing harassment or discrimination issue(s) you need to get a hold of or ahead of.
- Respond swiftly and appropriately if you determine there has been harassment, discrimination, or retaliation.
- If you are overdue, have counsel conduct sexual harassment training for employees and management.
By taking these steps, employers will provide a workplace where women are not faced with harassment and the difficult decision of whether and how to come forward.
Art Bourque is an AV rated commercial and employment lawyer who has been practicing law in Phoenix, Arizona for 27 years. Art provides employment law training to help businesses operate efficiently and avoid mistakes; he is also an experienced litigator on behalf of both plaintiffs and defendants. Art can be found at www.bourquelaw.com, firstname.lastname@example.org, 602.559.9550, linkedin, or trail running with his dog, Eli.