Sexual Harassment and Hostile Work Environment: What to Do

Sexual Harassment and Hostile Work Environment: What to DoThere’s been a ton of sexual harassment allegations in the news lately. In a matter of weeks, we’ve seen American Apparel CEO Dov Charney ousted after a steady stream of sexual harassment allegations (along with other mismanagement issues), an ex Tinder VP suing the startup and its co-founder for sexual harassment (and exposing some very interesting text messages in the process), and even a female Yahoo executive who is accused of coercing her female subordinate into having sex (although Yahoo and the accused executive claim the case to be bogus).

As an employment attorney I can tell you that, aside from wage theft, sexual harassment hostile work environment is probably one of the most common workplace problems that can be found in almost every type of business environment. Here’s some helpful knowledge on sexual harassment and what to do if you find yourself being targeted.

What exactly is “sexual harassment” in the workplace?

For starters, you should know that not all harassment is illegal. Generally, your employer, boss, co-worker, etc., can “harass” you for any reason, as long as it’s not “because of” a protected category or protected activity. When I say “protected category,” think Title VII (age, race, sex (gender), disability, religion, color, national origin, etc.).  With regard to “protected activity,” think more along the lines of a whistleblower – for instance, reporting that you’ve been targeted (because of your protected category) and/or reporting or refusing to participate in any wrongdoing or illegal activity, like fraud or discrimination of another employee.

Requesting and/or taking a “protected medical leave” (like Pregnancy Disability Leave or Family Medical Leave) also qualifies as “protected activity” in most cases.

Employer’s can’t discriminate against or fire you because of your protected category or protected activity, but they can discriminate, harass or fire you for virtually any other non-illegal reason, or even no reason at all. This is what’s meant by “at will” employment in California.

This brings us to sexual harassment or, more accurately put: harassment “because of” your sex (gender).

There are two types of sexual harassment under the law:

Quid Pro Quo – this occurs when a more senior manager or employee demands that you perform sexual favors in exchange for a promotion, obtaining a job or in exchange for some other workplace benefit, much like the female Yahoo exec above who allegedly coerced her female subordinate into sex in exchange for a “bright future” at the company. 

Hostile Work Environment – this is the more common type of sexual harassment seen in the workplace. Hostile work environment occurs when a supervisor or other employee makes sexually suggestive comments, gestures, advances, pictures, emails, texts, touch or humor that unreasonably interferes with work performance. The conduct must be both severe and pervasive, so isolated incidents and/or stray remarks usually aren’t enough, but it all depends on the exact conduct. 

The key to both types of sexual harassment is that the conduct is unwanted, which is sometimes hard to prove if the employee acquiesces or agrees to the treatment out of fear of losing their job, which is a very common dilemma. Even if the harasser is just a co-worker or customer of the business, harassed employees often do no report or complain about the treatment for fear of retaliatory termination.

What should you do if you’re being sexually harassed?

There’s obviously a ton of material on this subject, but here’s a practical assessment of what you should generally do in this situation. Anyone reading this should know that, for obvious reasons, speaking up about sexual harassment in the workplace, by necessity, will put your job and relationship with your employer at risk. Thus, you decision to take action must be your own and you should be prepared for all possible consequences.

Nothing can guarantee that your boss will stop harassing you, your employer won’t fire you or that you’ll have a stellar case, but if you do decide to take a stand, then following these guidelines will at least help put an end to the harassment and/or help you will make a good record to preserve your rights if and when legal action becomes necessary.

#1: Tell the Harasser to Stop

Step one is the hardest. How do you tell your boss or superior to stop sexually harassing you? Sometimes it’s just inappropriate comments or text messages, which shouldn’t be too hard to tackle. However, sometimes it’s much more direct (and more offensive) unwanted touching, groping and fondling. In any case, this step is difficult because it not only takes immense courage to take a stand against your boss, but it’s also invariably awkward and uncomfortable.

No attorney can give you an easy way of telling your harasser to stop, but you should approach it tactfully and probably match your attitude with the egregiousness of the sexual harassment. For example, there’s no need to become irate over a few stray comments, however, it would be perfectly understandable to to give your boss “the business” if he overtly fondles or gropes your breasts (although you should avoid anger whenever possible).

If it’s too difficult to confront your boss, then it’s also ok to skip to step #2 and go directly to Human Resources. In-person meetings are ok, but make sure to first report it in writing.

#2: Report the Incident in Writing

Step two is the most critical step. If you’ve told your boss to stop sexually harassing you, then you’ve already put your job at risk. Now you need to make your record and, in doing so, preserve your rights.

The most critical step in stoping sexual harassment and protecting your future rights is making a record with your Human Resources department. HR has the power to investigate and stop this type of conduct from continuing, but they also have the ability to look the other way, do nothing, and/or help your boss retaliate against you. It can go either way, but the one thing HR can’t do is make a detailed, well-written email complaint disappear from existence.

This is why it’s best to document your sexual harassment complaint in an email to HR. Make sure your complaint is actiually written in the body of the email, as opposed to an attached document, so it’s all there for anyone (i.e. the jury) to see. Emails are great. They’re dated, time stamped, verifiable and, absent some impressive IT skills, indestructible. It’s proof that you spoke up and proof that your employer knew about it before they fired you. Needles to say, it’s an important email, so draft it with care. Be professional, resist the urge to “vent” or use profanity, and please, please use spell check.

Your complaint should be very detailed. Describe exactly what happened, when it happened, who witnessed it, what you said and how it made you feel. It may get a bit lengthy, so remember to keep it as organized and professional as possible. Remember: you’re not writing this complaint to make accusations, you’re simply an employee asking for help (and simultaneously making a detailed factual record your your use later, if necessary).

Be respectful and, above all, do not come across as vengeful. Even the most slam-dunk sexual harassment case can be lost if the jury doesn’t like you, so don’t give your employer (aka future defendant) anything they can use to smear your good character. Believe me, they will if they can.

Also, make sure your complaint is timely. Do NOT keep the information “in your back pocket” for a another day – a complaint that is not reported immediately does not come across as very credible. Too many employees [erroneously] believe that, as long as they can prove they were sexually harassed, they will win. Dead wrong. A jury will never award damages if they don’t think the plaintiff deserve it, even if they know he or she was wronged.

Approach HR honestly and cooperate with them as much as possible. The key is to remember that HR is supposed to help you (and they likely will) but HR’s primary task is to protect the company, not you. So it’s a fine balance. HR will usually do the right thing, but In some instances, they could work against you to help the employer cover-up the illegal conduct.

With that in mind, make sure to record all communications in writing by sending a confirming email after any in-person or over-the-phone conversations. Trust, but verify. Don’t sign any written statement unless it’s both 100% accurate and 100% complete – even one omitted or “assumed” fact can make a huge difference later-on. Never sign any waiver of rights or severance agreement without taking it to an attorney first.

#3: Follow-Up With HR

This step depends on the situation. If you experienced a single incident, you’re probably more interested in making a record and moving on. If you’re experiencing ongoing harassment, it’s critical to report the new incidents in writing and to ask HR what they can do about it.

Make it clear that the conduct is continuing, that you’ve asked the harasser to stop multiple times and that it’s affecting your work environment. It’s also good to reference your previous complaints in case your new complaints are being handled by a different person. This forces HR to act, but keep in mind that it doesn’t necessarily mean HR will act appropriately. It may trigger retaliation, which you also need to report and document. Make it clear that you’re being retaliated against and explain what’s happening in a clear, concise manner. Be prepared for anything in response.

#4: Don’t Sign Anything if You Get Fired

The goal of the above steps to lead HR into investigating and stopping sexual harassment, but not all cases get resolved amicably. As I mentioned above, it can go one of two ways. If HR doesn’t know what they’re doing (this happens a lot) or if your employer is vindictive, evil or just plain stupid (also happens a lot), they might end-up firing you. Understand that you won’t automatically have a case if you get fired, but it will be much more likely if you have favorable witnesses and/or written complaints to support your contentions.

Once you’ve been terminated, you should cease all unnecessary communications and consult an attorney as soon as possible. Avoid any epic send-off emails where you tell everyone to get bent and go to hell. Above all, don’t sign any severance agreement or waiver of rights without consulting an attorney first.

Most companies offer a severance as a standard practice, but it’s not required by law. Severance pay exists for one reason: to get you to sign a contract promising never to sue them for anything . . . even if it’s for something crazy that you don’t even know about yet. Yeah, they can do that.

Your employer would much rather pay $1000 in severance today than a $100,000 settlement or $1M verdict few months from now. So remember, it’s usually in your employer’s best interest to get you to sign and, once you do, it’s game over. It’s nearly impossible to overcome a signed contract unless you can prove it was signed under duress (i.e. they were literally forcing you to sign and wouldn’t let you leave until you did . . . which has actually happened).

A lot employers claim that you are “required” sign certain documents “in exchange” for your final paycheck. This is false and illegal. California employers are required by law to timely pay all wages earned as well as tender your final paycheck immediately upon termination, no matter what. If they don’t, they’re liable for penalties under the Labor Code.

Some employers will tell you to “sign now” or else the offer is “off the table.” This should be a huge red flag and, while not required by law, you should always be given the opportunity to consult an attorney. The decision to take it or leave it must be yours, but if you think there may have been some unlawful conduct, it’s best not to sign. Again, at the end of the day, it’s usually in the employer’s best interest that you take the severance and agree never to sue, so it’s possible they will take the offer “off table,” but not likely.

#5: Consult an Employment Attorney

Notice I said an “employment” attorney and not just any attorney. Employment law, especially in California, is extremely nuanced and constantly evolving.  Employment cases takes loads of time and effort to work-up correctly and employers have vast resources (i.e. massive insurance policies) at their disposal to defend themselves with. A lot of them also hire very expensive (and sometimes nasty) defense attorneys with marching orders to destroy your case, cover-up evidence and harass you as much as possible. If you’re not represented by an employment attorney, they won’t take your case seriously.

If you’re honest and it looks like you have a good case, an employment attorney will almost always take it on a contingency arrangement, meaning you will not have to pay any costs until after you obtain a recovery. The most important part, however, is to be honest and tell your attorney the good facts and the bad facts together so he or she can better evaluate your case. This ensures there won’t be any costly and embarrassing “surprises” later in litigation.

In the end, these steps will help to preserve your rights for the future, but as any attorney will tell you, the law isn’t an exact science. Nothing is guaranteed and every employer reacts differently when it comes to reports of sexual harassment. Remember, it’s not about what happened, but about what you can prove happened, which is why you should always take steps to keep a good record when trying to resolve sexual harassment. When in doubt, consult an attorney, even if you haven’t been fired yet.