Protecting Your Rights at Work – Part One

Questions Posed:

• How do you know what your rights are at work in reference to sexual harassment?
• What if your employer forces you to work with someone reported for assault or harassment?

Every person has the right to work free from sexual harassment. Unfortunately, sexual harassment is common, with some estimates showing that as many as 60% of women working in the Silicon Valley have experienced unwanted sexual advances.¹

What is sexual harassment

Sexual harassment can take many forms, including (1) unwelcome verbal or physical conduct (e.g., repeated requests for dates, catcalling, leering, crowding, touching, fondling, groping, or sexual assault); (2) unwelcome and pervasive exposure to visual sexual material (e.g., photos, memes, jokes, videos of a sexual or gendered nature); (3) harassment based on gender stereotyping (e.g., based on whether you look “feminine” enough or “too masculine”); or (4) where you are subject to an employment decision (hiring, promotion, transfer, etc.) based on whether you submit to or reject an unwelcome sexual advance (usually by a supervisor to a subordinate).

Sexual harassment is illegal under federal and state laws. In California, both employers and individual supervisors can be liable for sexual harassment. If your employer forces you to work with someone reported for assault or harassment, the employer is exposing itself to further liability for not protecting you in the workplace. If you find yourself in this situation, you definitely will want to document any harassment that happens to you and possibly consult with a lawyer (see below).

What should you do if you are sexually harassed?

Document It: The first thing you should do is document what is happening to you. Take notes, noting dates of events, what was said and by whom, and any witnesses. Keep copies of documents, text messages, emails, voicemails, and social media posts that support your experiences. But don’t go looking for confidential documents because that can expose you to potential counterclaims and cause problems for you down the road. Also, beware of secretly taping conversations because that can be illegal depending on your state (it is illegal in California).

Report It: There are many ways of reporting sexual harassment—public and non-public—including reporting it internally (non-public), filing a complaint with the Equal Employment Opportunity Commission (non-public), or filing a lawsuit (public).

Internal complaints to Human Resources provide a first chance to see how seriously the company takes this issue. A good company will engage you in a sensitive and professional process. Not all company Human Resources departments are good or professional, and beware that sometimes HR managers are oriented to protect the company first no matter the merit of your complaint.

Filing a complaint with the Equal Employment Opportunity Commission (EEOC) is a good way to preserve your claims because the deadline to raise a complaint about sexual harassment is either 180 or 300 days depending on your state (it is 300 days in California). These complaints are not public, but your employer will know about it.

In California (and many other states), there is also a parallel state agency, the Department of Fair Employment and Housing (DFEH). In California, you can file complaints with the DFEH to protect claims under state law within 365 days of the acts taken against you. (In California, if you file a complaint with the EEOC within 300 days, it will be dual-filed with the DFEH (meaning, you don’t need to file it with both agencies).

The EEOC (or state agency) may elect to prosecute a claim on your behalf, but this is very rare no matter the merit of your claim due to resource limits at the agency. Nevertheless, to preserve claims under federal law, you must first file a complaint with the EEOC. California has the same agency filing requirement to preserve state claims.

By contrast, some states do not require employees to first file a complaint with the state agency in order to file a lawsuit challenging harassment under state law. However, there are still time limits on how long you can wait between the harassment and bringing a lawsuit. You should consult with a lawyer in your area.

Sue: Sexual harassment is unlawful and you could be entitled to damages and other relief for sexual harassment. You will definitely need a lawyer to represent you in court.

Because the legal issues involved in pursuing an harassment complaint can be complex, it is advisable to consult with a lawyer who can evaluate the specifics of your case as early as possible. This will ensure that you understand how to protect your rights and what your options are in resolving claims up to and including litigation, if appropriate for you. Initial legal consultations are often free, and many lawyers work on a contingency basis (meaning, they do not get paid unless you get paid).

And beyond the legal issues, understand that sexual harassment can be emotionally destructive, anxiety-inducing, and professionally damaging. Take care of your emotional needs first and foremost. No one should have to work in an unsafe environment.

Written by Lin Y. Chan, a partner at Lieff Cabraser Heimann & Bernstein, LLP based in San Francisco, California, in answer to questions sourced from the Women Who Code community.

¹ http://fortune.com/2016/01/11/survey-sexual-harassment-tech/