Responding to sexual harassment can be an extremely stressful task and will take a lot of consideration and planning. I will start off by giving a recent example in Washington of a sexual harassment case, that helps underscore the importance of some of the steps that you should take when faced with sexual harassment at work:
This year, the Equal Employment Opportunity Commission (“EEOC”), the federal agency charged with investigating and prosecuting employment discrimination cases, filed a lawsuit against Chipotle Mexican Grill, alleging sexual harassment of women that worked in the Sammamish, Washington restaurant location. The complaint alleges that a service manager began to target a 16-year-old female with unwelcome sexual comments, touching, and requests for sex.
The complaint states that once a different manager reported the teen’s concerns about sexual harassment to the general manager, the general manager failed to investigate and instead warned the teen she could be fired for engaging in an inappropriate relationship with the service manager. The general manager then continued to schedule the teen to work a closing shift with the harassing manager.
Management at Chipotle then failed again to take action after they received complaints of sexual harassment by a 24-year-old employee who made comments about the bodies of several workers and referred to them with unwelcome and gender-specific nicknames like, “mama,” “sweetheart” and “baby girl.”
As Chipotle investigated the complaint, the EEOC says Chipotle allowed the alleged harasser to return to work, where he angrily confronted those who complained, forcing at least two women to quit their jobs.
What is sexual harassment?
The EEOC defines sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
The United Nations has a helpful, non-exhaustive list that can help you understand the types of behavior that lead to sexual harassment. Some examples of sexual harassment include, but are not limited to the following:
- Unwanted pressure for sexual favors or acts
- Unwanted deliberate touching, leaning over, brushing up against, cornering, or pinching
- Forcing a person to be one-on-one in a small or isolated area
- Unwanted sexual looks
- Hugging or kissing
- Unwanted touching of clothing, hair or body
- Whistling, catcalls
- Making sexual references or innuendo
- Unwanted letters, telephone calls, or other contact of a sexual nature
- Making sexual gestures or telling sexual stories
- Using gender-based names or referring to adults as “sugar”, “babe”, “doll”, “honey”, “girl” or other names
- Asking personal questions or making statements about someone’s romantic or sexual life
- Unwanted or repeated pressure for dates
- Turning work discussions to sexual topics
- Making comments about a person’s clothing, body, anatomy, or looks
- Showing explicitly sexual materials or content to others
- Giving unwanted massages or demanding massages
In the above Chipotle case example, you can see how several of these behaviors are being alleged about Chipotle managers, including inappropriate touching, gender-based name-calling, comments about the bodies of several women, unwanted sexual comments, touching, and requests for sex.
Why should I stand up against sexual harassment in the workplace?
Sexual harassment at work can have an overwhelmingly negative effect on a survivor’s health and well-being. For example, RAINN, “the nation’s largest anti-sexual violence organization”, lists several different wide-reaching health effects of sexual harassment in the workplace, including but not limited to increased stress, anxiety, depression, PTSD, substance abuse and suicidal ideations. Victims of sexual harassment can also experience job-related costs as well from job loss, decreased morale, decreased job satisfaction to irreparable damage to interpersonal relationships at work. A recent study also shows that women who experience sexual violence, workplace sexual harassment, or both have a higher long-term risk of developing high blood pressure than women with no such trauma. In short, sexual harassment can wreak havoc on the victim in many profound ways.
What should I do if I experience sexual harassment in the workplace?
1. Document Sexual Harassment & “Keep Receipts”
As I have mentioned in previous blogs and videos, documentation is one of the most important weapons to combat a hostile work environment in the workplace.
When counseling victims and survivors of sexual harassment, I often refer to the book Staying in the Game, by Adrienne Lawrence, an attorney and TV host. Staying in the Game is a great resource for anyone struggling as a victim or survivor of ongoing sexual harassment. Specifically, in order to fight back against “harassholes”, Ms. Lawrence dedicates an entire chapter on “Keeping Receipts”, which I believe is the most important thing you can do: document your sexual harasser’s behavior.
Unfortunately, your recollection of what happened is usually not enough. If you are considering holding your harasser or your company accountable for sexual harassment in the court of law, you will not be successful unless you have evidence or witnesses that can show a judge or a jury what happened that created a hostile work environment for you. You need receipts.
Examples of evidence that you will want to keep are: personal copies of emails, text messages, photographs, logs of harassment or treatment that include dates and times of harassment, who was involved, what was said or done, etc. Evidence can also include audio recordings, video recordings, or voice messages (note: know the law in your area regarding whether you need to get consent from the person you are recording). Make sure that you keep personal copies of important documents such as screen grabs, audio recordings, printed copies, or saved documents, as you never know when your employer could cut you out of your access to your work phone, computer, email or electronic database. Be careful not to break any rules or laws by stealing information for which you do not have access. And don’t assume that a Youtube video, text message, or Instagram post will be there tomorrow. Document, download, make backups, keep personal records, and make copies for yourself that you know will be in a safe place away from your office at work.
2. Recruit witnesses & document their recollection of the harassment.
Just like in the above-referenced Chipotle case, having witnesses is important. As I have mentioned in the past blog (Am I Being Sexually Harassed? A Guide to Responding to Sexual Harassment in Washington), having witnesses of sexual harassment is sometimes difficult given harassers’ ability to keep sexual harassment private, isolated and undetected. However, witnesses can be very crucial to a sexual harassment case to take control of the narrative and make it difficult for the harasser to deny their insidious behavior. For example, I often won’t decide to take a case until I have spoken with firsthand witnesses. In other words, witnesses are very important.
If someone observes your harasser in the act, (and you are comfortable approaching them) follow up with the witness. Talk to them about what happened. Then, memorialize what you discussed about the incident in writing to the witness (such as in text or email), including what happened, when, where, and who was involved, note the witness’ impression of the incident, and their feelings about what happened. You can even thank them for their support. In Staying in the Game, Adrienne Lawrence calls this a “Stealth Follow Up” or “SFU”. Documenting these witnesses’ recollections will ensure that you have evidence to back up your story and crystalize your witnesses’ recollection in case they need to recall what happened months or years later.
It might seem weird or awkward to approach someone who witnessed sexual harassment, but trust me, witnesses can make or break a case. You also might find that the witness is aware of other incidents or may even be a victim of sexual harassment too. You will never know unless you talk to witnesses and document what you learn. Take control of your case and find witnesses that can back up your story.
3. Reporting sexual harassment
My clients usually get a question at some point during sexual harassment cases that go something like one of the following:
- “Why didn’t you report to HR or one of your managers?”; or
- “If your work environment was so hostile, why didn’t you report sooner?”; or
- “If you reported sexual harassment, how come there is nothing in writing?”
One of the biggest mistakes you can make as a victim/survivor of sexual harassment is if you either:
- (1) do nothing to respond to sexual harassment, or
- (2) you report something to management or HR, but not in writing.
It is normal to not want to report sexual harassment. As I have mentioned before, the EEOC has found that 25% to 85% of women report having experienced sexual harassment in the workplace. However, approximately 90% of survivors of sexual harassment never take formal action against the harassment, such as filing a charge or a complaint.
True, there are many reasons why you might not want to report sexual harassment, especially in writing. But when supervisors or human resource professionals are asked later about whether they were told about your report of sexual harassment, and there is no evidence of a written complaint, they will almost certainly deny it. Moreover, HR professionals are often coached or trained not to keep certain written records or to conduct conversations in person or on the phone. Thus, it is extremely important to:
- (a) document your complaints in writing when you make them; and
- (b) keep a personal copy for your records.
For me, making a verbal report of sexual harassment or not keeping a copy puts a target on your back without giving you the protection that a report can give you, which I will explain below.
Thus, submitting a complaint in writing is important for a few reasons:
- (1) it can actually solve the problem by addressing the issue instead of ignoring it;
- (2) it can actually protect your job; and
- (3) it preserves a written record of your complaint.
Solve the Problem.
By contacting a human resource professional, a supervisor, or in some cases confronting the harasser directly, you can prevent future harassment and you might be able to stop it. Just make sure you document the communication and keep a copy of that documentation, so that in the event that it does not stop, you can prove that you tried to address the situation to no avail and you can put pressure later on the employer for not taking your complaint seriously, like in the Chipotle case discussed above.
Protect Your Job.
Many of my clients often tell me that they do not want to report sexual harassment because they are afraid of retaliation or being fired. However, if you are complaining in writing about sexual harassment, you are engaging in what is called “protected activity” meaning that you cannot legally be fired for reporting sexual harassment. Therefore, if something happens to your job, i.e., you are fired, the argument can easily be made that you are experiencing retaliation for reporting your concerns of illegal behavior in the workplace. As such, reporting concerns of what you reasonably believe is sexual harassment can actually protect your job and make your employer think twice about taking adverse action against you, such as termination. Even though you may be afraid to speak up because you do not want to lose your job, by reporting sexual harassment in writing, it is often the case that you are making it harder for the employer to terminate you.
Preserving the Record.
Often when I meet with potential clients, I will ask them if they complained about sexual harassment to anyone. Too often, they will say “yes, but just verbally.” This can be fatal to a case. One of the ways to hold a company liable for sexual harassment is to show that when you complained about sexual harassment, that they did not take steps reasonably calculated to end the sexual harassment. In that situation, legally, the employer must investigate, address the harassment head on, and take steps to ensure that it does not continue. However, if you cannot prove that you actually complained about the sexual harassment, it is much harder to hold the employer accountable for sexual harassment. As can be seen in the Chipotle case, it is illegal for the employer to know about sexual harassment, do nothing about it, and then make the person that was harassed continue to work with the harasser.
So, report your complaints in writing and keep a copy! This way, you can prove that when you tried to address the sexual harassment in writing with your company, that they failed to promptly fix the problem. This will drastically improve your case later down the road if you decide to file a lawsuit.
Find an Experienced Sexual Harassment Attorney
If you or someone you know is the victim of sexual harassment in the workplace, contact a lawyer at Navigate Law Group that can help you to formalize a plan that works for you to fix the problem, as it is your substantive right to be free from sexual harassment in the workplace.
- Lilia M. Cortina and Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, 1 THE SAGE HANDBOOK OF ORGANIZATIONAL BEHAVIOR 469, 469-96 (J. Barling & C. L. Cooper eds., 2008).
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Every legal issue is very unique. Accordingly, the information in this blog is intended as general education material and not as legal advice. If you think you may have a legal issue, you should consult an attorney.