Individuals who are victims of sexual harassment and discrimination often suffer in silence. Like rape victims, victims of sexual harassment often feel somewhat responsible for being mistreated. Make no mistake: it takes courage to stand up for yourself. But once you summon the courage to do something about it, you need a good lawyer who understands and appreciates the financial and psychological damage that sexual harassment causes.
State and Federal laws are well designed to provide individuals with the tools to fight for their rights. But there is also bad news. First, it is very difficult to successfully sue for sexual harassment if there has not been a substantially adverse employment action, like termination or demotion. If the harassment is so severe that you cannot return to work without extreme anxiety, depression, or other serious psychological harm, it is possible to show that you have been “constructively discharged,” which means that the situation is so bad that a reasonable woman would not be able to work in the environment. The point is that you need to have suffered an adverse employment action that is related to sexual harassment before you can hope to bring a successful lawsuit.
The other bad news is that harassment can be difficult to prove without corroboration. I call this the “He said/She said” dilemma. Technically, a successful case can be proven solely on the basis of one person’s testimony, but in reality, you need to locate, collect, and/or generate evidence that corroborates your side of the story.
Here are some tips that will help your case immensely:
1. If you are currently suffering sexual harassment, start documenting the events, preferably by emailing yourself or a trusted friend. Using email will “time-stamp” the entries automatically so you can easily prove they were written on certain dates. Simply writing things down on paper does not prove when they were written.
2. It is important to document harassing events before you suffer an adverse employment action. Often, an employer will fire or demote someone because they complain about harassment, but the employer gives a different, pre-textual reason like chronic tardiness, multiple absences, dishonesty, etc. But if you have already documented the harassing conduct, you will be able to show that the employer’s reason is a mere pretext.
3. You must tell someone at the supervisory level about the harassment before any adverse employment action has been taken. Employers are required to take such complaints seriously, and they are prohibited from retaliating against you for reporting sexual harassment. If you do complain, and they fire you soon after, you may have a strong case, especially if you have documented the harassment.
4. If you do not feel comfortable reporting the harassment to a supervisor or the owner, then you should file a complaint with the Attorney General’s Office, Division of Civil Rights, or the federal Equal Employment Opportunity Commission (EEOC). You cannot sue your employer for sexual harassment if your employer did not know about it and had an opportunity to fix the problem.
5. I realize that there is often a real risk of illegally getting fired in retaliation for reporting harassment. However, there is strength in numbers. Find a trusted associate or supervisor to accompany you when you report the harassment. Or, you can hire an attorney to help you report the harassment.
6. If you are fired after you report sexual harassment, demand that your employer state in writing the reason for your termination.
7. Hire an attorney as soon as possible after being terminated or demoted. This is important because of the statute of limitations, but it is most important because taking legal action soon after termination will, in itself, corroborate your allegations of harassment.
If you have been subjected to severe or pervasive sexual harassment, suffered an adverse employment action, and you have corroborating evidence, you should call a plaintiff’s employment attorney.
About the author
Brett Skidmore is an Ogden, UT criminal defense attorney. He has represented individuals in matters related to sexual harassment and other crimes.