Spiga

Taking Steps to End Sexual Harassment

The alternatives described here can be viewed as a series of escalating steps you can take to stop sexual harassment. If a particular tactic does not end the objectionable behavior, you can switch to increasingly formal strategies until you find one that is effective.

1. Confront the Harasser
Often the best strategy for the employee sounds the simplest: Confront the harasser and tell him or her to stop. This is not appropriate or sensible in every case, particularly when you have suffered injuries or are in some physical danger. But surprisingly often—most workplace experts say up to 90% of the time—it works.

Confronted directly, harassment is especially likely to end if it is at a fairly low level: off-color jokes, inappropriate comments about appearance, repeated requests for dates, sexist cartoons tacked onto the office refrigerator. Clearly saying no does more than assert your determination to stop the behavior. It makes clear that you find the behavior unwelcome—a critical part of the definition of sexual harassment. It is also a crucial first step if you later decide to take more formal action against the harassment.

Tell the harasser to stop. It is best to deal directly with the harassment when it occurs. But, if your harasser surprised you with an obnoxious gesture or comment that caught you completely off guard—a common tactic—you may have been too flabbergasted to respond at once. Or, if you did respond, you may not have expressed yourself clearly. Either way, talk to the harasser the next day.

Here are some tips for telling the harasser to back off:

  • Keep the conversation brief. Try to speak privately, out of the hearing range of supervisors and coworkers.
  • Do not use humor to make your point. Joking may be too easily misunderstood—or interpreted as a sign that you don’t take the situation seriously yourself.
  • Be direct. It is usually better to make a direct request that a specific kind of behavior stop than to tell your harasser how you feel. For example, saying “I am uncomfortable with this” may be enough to get the point across to some people, but the subtlety may be lost on others. And, of course, making you uncomfortable may be just the effect the harasser was after.
  • Offer no excuses. Keep in mind that you’re not the one whose behavior is inexcusable. Simply make the point and end the conversation. There is no need to offer excuses, such as: “My boyfriend wouldn’t like it if we met at your apartment to discuss that new project.”

Put it in writing. If your harasser persists, write a letter spelling out the behavior you object to and why. Also specify what you want to happen next. If you feel the situation is serious or bound to escalate, make clear that you will take action against the harassment if it does not stop at once. If your company has a written policy against harassment, attach a copy of it to your letter.

Caution Beware of retaliation. Do not overlook the possibility that some company witnesses may be blackmailed with the threat—soften unspoken—that they will lose their jobs or be demoted if they cooperate with you in documenting or investigating a sexual harassment complaint. While retaliation is illegal, it is difficult to prove. If possible, try to document the harassment by talking with witnesses both inside and outside the company.


2. Use a Company Complaint Procedure
A court sometimes requires a company to write a comprehensive policy if it finds there has been a problem with sexual harassment. Many businesses are also adopting sexual harassment policies on their own, to foster a better atmosphere for employees.

If you are harassed at work, a sexual harassment policy can help you determine what behavior you can take action against and how to ensure the harassment is stopped.

And, in fact, it is essential for you to heed these policies. The U.S. Supreme Court has recently ruled in a number of cases that employees can no longer be coy: If a workplace has a policy or a complaint procedure in place, workers must follow it to complain about or take other action against the bad behavior. Workers who don’t take advantage of company procedures for complaining about harassment may lose the legal right to sue the employer.

Find out whether your employer has a sexual harassment policy by contacting the human resources department or the person who handles employee benefits. If there is no policy, lobby to get one.

3. File a Complaint With a Government Agency
If the sexual harassment does not end after face-to-face meetings or after using the company complaint procedure, consider filing a complaint under the U.S. Civil Rights Act with the U.S. Equal Employment Opportunities Commission (EEOC) (see Chapter 7, Section A) or filing a complaint under a similar state law with a state Fair Employment Practices (FEP) agency. (See Section C, above.)

Filing a complaint with these agencies does two important things:

  • It sets in motion an investigation by the EEOC or the state FEP agency that may resolve the sexual harassment complaint.
  • It is a necessary prerequisite under the U.S. Civil Rights Act and under some state FEP laws if you want to file a lawsuit under the Civil Rights Act or under a state FEP law.

Sometimes the EEOC or a state FEP agency can resolve a sexual harassment dispute at no cost to the employee and with relatively little legal involvement. Almost all of these agencies provide some sort of conciliation service—a negotiation between the employer and employee to end the harassment and restore peace in the workplace. And most agencies protect the employee against retaliation for filing the complaint. Most agencies have the power to expand their investigation to cover more widespread sexual harassment within the company. A few state FEP agencies also provide an administrative hearing panel that can award money to compensate a harassed employee for personal injuries, although the EEOC and most state agencies do not have this important power.

The EEOC and state FEP agencies can resolve a lot of cases, but not all of them. Investigations sometimes drag on longer than the harassed employee is prepared to wait. Not all cases will yield to the conciliation efforts of such agencies; this is particularly true in severe cases of sexual harassment with significant personal injuries.

4. File a Private Lawsuit
If investigation and conciliation by the EEOC or a state FEP agency does not produce satisfactory results, your next step may be to file a lawsuit under the U.S. Civil Rights Act or under one of the state FEP statutes.

Even if you intend right from the beginning to file such a lawsuit, you generally must first file a claim with a government agency, as described above. An employee must file a claim with the EEOC before bringing a lawsuit under the U.S. Civil Rights Act. Some states also require that the employee first file a claim with the state FEP agency before suing under state law. At some point after such claims are filed and investigated, the agency will issue you a document—usually referred to as a right-to-sue letter—that allows you to take your case to court. Going to court in such lawsuits requires getting legal advice from an attorney who is experienced in these types of cases.

Generally speaking, suing under the U.S. Civil Rights Act is potentially more lucrative than relying on state law. Most state FEP laws allow you to win lost wages and benefits, but not compensation for physical and mental injuries such as stress and anxiety caused by the harassment. By contrast, the Civil Rights Act allows the employee to recover some money—out-of-pocket losses plus $50,000 to $300,000, depending upon the number of employees in the company. Its coverage, however, is limited to employers with 15 or more employees.

However, some states, such as New York and California, do better. They allow an employee to be compensated up to the full amount of damages proven, without any artificial limits. Employees in those states will probably want to pursue their rights under state law or maybe a combination of state and federal law.

5. File a Tort Lawsuit
Bringing a tort action (that is, a lawsuit for personal injuries) is often the last legal resort for sexually harassed workers. These legal actions provide a wider range of possible remedies than those available under the Civil Rights Act. You can sue both for compensatory damages for the emotional and physical distress you suffered because of the workplace harassment, and for potentially large punitive damages aimed at punishing the wrongdoer.

These lawsuits, which will usually require help from a lawyer, are based on traditional legal theories such as assault and battery, intentional infliction of emotional distress, interference with contract, and defamation. These actions, called torts, are civil wrongs—and are filed in state courts like any other lawsuit based on a personal injury.

At least in theory, tort actions allow unlimited dollar verdicts for some of the most severe injuries wrought by harassment: emotional and physical harm. These tort actions are particularly appropriate where a worker has suffered severe trauma from the psychological remnants of harassment—embarrassment, fright, or humiliation—which can cause a permanent loss of self-esteem and take a heavy toll on emotional and physical health.

While a tort lawsuit may be the best option for some harassed workers, it is the only possible remedy for others. As mentioned, if your employer has 14 or fewer employees, you are not covered by the U.S. Civil Rights Act and cannot file an EEOC complaint or a federal lawsuit for money.

The Effects of Sexual Harassment

Sexual harassment on the job can have a number of serious consequences, both for the harassed individual and for other workers who experience it secondhand and become demoralized or intimidated at work.


1. Loss of Job



Sometimes the connection between sexual harassment and the injuries it causes is simple and direct: A worker is fired for refusing to go along with the sexual demands of a coworker or supervisor. Usually the management uses some other pretext for the firing, but the reasons are often quite transparent.


Sometimes the firing technically occurs because of some other event, but it is still clearly related to sexual harassment. For example, if a company downgrades an employee’s job and assignments because of a harassment incident and then fires him or her for complaining about the demotion, that injury is legally caused by sexual harassment.


If an employee is temporarily unable to work as a result of the harassment and the management uses that as an excuse to fire him or her, that is also considered legally related to the harassment.


2. Loss of Wages and Other Benefits



An employee who resists sexual advances or objects to obscene humor in the office may suffer work-related consequences including:

  • being denied a promotion

  • being demoted, or

  • suffering various economic losses.


That employee may also suffer harm to his or her standing within the company, which could jeopardize future pay increases and opportunities for promotion.


A loss of wages usually entails a loss of other job benefits as well, such as pension contributions, medical benefits, overtime pay, bonuses, sick pay, shift differential pay, vacation pay, and participation in any company profit-sharing plan.


3. Forced Reassignment

Sometimes a company responds to an employee’s complaint of sexual harassment by transferring that individual somewhere else in the company and leaving the harasser unpunished. This forced reassignment is another form of job-connected injury, and it may be compounded if it results in a loss of pay or benefits or reduced opportunities for advancement.


4. Constructive Discharge

Sometimes the sexual harassment is so severe that the employee quits. If the situation was intolerable and the employee was justified in quitting, sexual harassment caused him or her to be constructively discharged—that is, forced to leave. While often difficult to prove, courts treat this as an illegal firing.


5. Penalties for Retaliation

Employees are frequently fired or penalized for reporting sexual harassment or otherwise trying to stop it. Such workplace reprimands are called retaliation. In such cases, the injury is legally considered to be a direct result of the sexual harassment.


6. Personal Injuries

In addition to job-connected losses, a sexually harassed worker often suffers serious and costly personal injuries—ranging from stress-related illnesses to serious physical and emotional problems.


Sexual harassment also causes a great many other types of physical, mental, and emotional injuries. Some of these injuries are stress-related, but others are caused by physical pranks or violent acts directed at the harassed worker.