The experience of reporting sexual harassment has changed radically in a few months. Since the first story was published on disgraced movie producer Harvey Weinstein’s alleged sexual misconduct, dozens of powerful men have been accused of harassment leading to firings, resignations, criminal investigations and starting a national conversation about sexual harassment in the workplace.
The Equal Employment Opportunity Commission reports that one in four women nationwide is harassed at work. Research has shown that it is primarily aimed at women, but men are also targets.
Even with all the talk, there’s still some confusion over what constitutes harassment and when does the situation rise to the level required to violate the law. Nonphysical harassment includes suggestive remarks and gestures, or requests for sexual favors. Physical harassment begins with touches, hugs, kisses and escalates to coerced sex acts.
There are two types of harassment at work: hostile work environment and quid pro quo.
To be defined as a hostile work environment several criteria must be met. It must be “unwelcome or offensive;” it must be directed at someone with a legally protected characteristic such as race, gender, sexual orientation, or age; and the misconduct must be severe or pervasive.
View the situation from a “reasonable person’s standards.” Not everything rises to the level of being unwelcome but it must be pretty bad or ongoing. However, most company policies are tough: a single incident, for some employers, could be cause for dismissal.
What if someone exposes themselves to a coworker? That’s a very black & white situation. If proven, it usually means termination. A kiss could potentially also violate the company policy. But very few attorneys would take a case for one kiss because it’s not severe or pervasive and would not rise to the level, typically, of violating the law.
Quid pro quo is where a sexual act is demanded in exchange for a reward or punishment of some kind. They can say, “You give me the sex I want and in exchange, I’ll either give you something, or if not, I’ll take something away.”
A common statement of those accused of harassment is they thought the relationship or behavior was consensual. However, a consensual relationship between a supervisor and a subordinate can’t really exist. The supervisor has power and it’s very hard to separate the power from the person. It’s very difficult to find consent that is free and voluntary.
If you’ve experienced or witnessed sexual harassment and want to act, the first step, whatever happens, is to keep notes and evidence.
After each incident write down what happened, what was said or touched, who did it, whether anyone else was around to witness what happened, where you were, what the time was. Keep notes in a notebook. Don’t store information on work devices. Otherwise, if anything goes wrong, your employer has access to your notes.
When investigating or reporting on a complaint of sexual harassment, accusers will often be asked if they had confided in a friend, family member or colleague at the time of the event or events. Even if you never plan to act, confiding in someone at the time can be helpful if you change your mind about acting later.
Make a Criminal Complaint
If sexually assaulted, go straight to the police. Generally, in cases where the harassment included physical touching, coerced physical confinement or coerced sex acts, it could be considered a crime.
If there is any physical evidence — for example, a blue dress with fluids on it or pornographic images — save it. Do not wash, and have a rape kit done. If you have been victimized and violated, it is important for law enforcement to have access to physical evidence as soon as possible.
File a Complaint with Your Employer
Follow your employer’s procedure for filing a complaint. This is the first step to take unless there is only one person to report to and that person was the harasser.
If you think you might have to file a lawsuit against the employer in the future, report the harassment to your employer first. Make sure all attempts at reporting the abuse are documented and take your notes with you to Human Resource.
Analyze your company handbook and understand the chain of reporting to follow. Your employer may have never acted on this policy before so you may have to be persistent to make your complaint.
Federal, State or Local Agency
If you do not want to, or can’t file through your employer, or the employer’s investigation is unsatisfactory, file a complaint at the federal, state or local level.
At the federal level, go through the Equal Employment Opportunity Commission. Title VII of the 1964 federal Civil Rights Act prohibits sexual harassment. You can also contact a Fair Employment Practices Agency.
If an agency finds your complaint warranted, it issues a “right to sue” letter allowing the case to be brought to court. You need this letter to file a lawsuit.With many state or local agencies, complaints can be filed without the help of a lawyer. But the process is slow and a lawyer can work more quickly with an employer.
Statutes of Limitations
Under Title VII, a claim must be filed with the E.E.O.C. within 180 days of the harassment. However, when filing the complaint with both the state and federal agencies, the statute of limitations is extended to 300 days.
Even if years have passed since the harassment and it’s too late to file claims, you can speak about the incident publicly at any time.
Going Public with Your Story
Going public runs the risk of being labeled a complainer or a liar which could be used for slander and libel. You can expect threats, intimidation, and investigation when making public allegations. It may be worth it, however, to connect with other victims, pursue justice, and know the individual won’t hurt someone else.