By Kelly Armstrong, San Francisco, CA
March 21, 2011
According to statistics from the Equal Employment Opportunity Commission (EEOC), sexual harassment in the workplace continues to be a major problem in the United States with as many as 100 claims being filed every work day of the year. Polls indicate that at least 40 percent of women say they have encountered unwanted sexual advances or remarks from men they work for, but very few of them say they reported the incident. Other polls indicate that perhaps as many as 90 percent of women say they have been subjected to unwanted sexual advances at work. Sexual harassment complaints to the EEOC have remained constant during the preceding decade.
Federal law requires employees to complain about sexual harassment to their employers and give the employers an opportunity to prevent the harassment from occurring. The employer may avoid liability for sexual harassment under Title VII if it can show that: (1) the employer was reasonable in its efforts to prevent sexual harassment and immediately stopped any sexual harassment from occurring; and (2) the employee failed to take advantage of opportunities to prevent and stop the sexual harassment also known as the avoidable consequences doctrine.
However, in contrast to federal law, it is well-established in California that under Government Code section 12940(j)(1), an employer is strictly liable for sexual harassment committed by a supervisor. Therefore, an employer’s strict liability arises regardless of its lack of knowledge or its attempts to remedy the situation.
Sexual harassment victims under both federal and California law can follow these simple tips for sexual harassment in the workplace:
Obtain a DFEH Right to Sue Letter through an Attorney before It Is Too Late
Federal law and most states require that employees exhaust their administrative remedies before filing claims in court by filing complaints with administrative agencies and obtaining right to sue letters. There are specific statutes of limitation which establish deadlines for when complaints must be filed.
Send a Letter or E-mail to a Manager So Your Complaint of Sexual Harassment Is in Writing
Most employers deny knowledge of receiving complaints of sexual harassment if they are not in writing. Attorneys can assist clients in drafting complaint letters or advise them what to state in an e-mail from themselves to their employers before they send demand letters to assess whether the employer’s response is adequate under applicable laws. In California, an employer has a duty to investigate. If they do not or their investigation is inadequate, as most are, the employer can be subject to a Failure to Investigate claim for additional damages.
Make Sure It Is Clear to Your Harasser That the Offensive Conduct Is Unwelcome
Employers will attempt to minimize damages by stating that the sexual harassment victim never told the harasser to stop and did not act as if the conduct was unwelcome. Although many sexual harassment victims are chosen by the perpetrators because they are vulnerable and likely to freeze in fear when they are subjected to unlawful conduct, specifically communicating to a harasser that the conduct is not welcome both verbally and in writing will protect the client from employer defenses here.
Keep a Journal of All Incidents with the Dates and Details
Most sexual harassment victims have tried to suppress and deny the incidents of sexual harassment. The emotional distress which results from being subjected to unlawful conduct in the workplace also impacts their ability to remember all the details. Victims often suffer from Post-Traumatic Stress Disorder (PTSD). Many victims will continue to have memories of additional incidents of sexual harassment over time once they contact an attorney for help and begin the legal process. They should keep a detailed journal as the harassment and new memories emerge so that all sexual harassment allegations can be maintained in one location, including potential witnesses to each incident.
Do Not Engage in Behavior, Jokes, or Interactions at Work That Could Be Used against You
Sexual harassment cases often become credibility contests between the employer and the victim. The employer will conduct background investigations and interview all of its employees in an attempt to obtain information which will undermine the victim’s credibility and portray them as willing participants in sexually charged behavior in the workplace. Ensure that clients download and deactivate all of their social media accounts so defense counsel is unable to review the accounts for opposition research.
Do Not Drink Alcohol with Co-Workers or Managers
Many of the most egregious allegations related to sexual harassment, including sexual assault, battery, and rape occur after both the harasser and victim have consumed alcohol. Alcohol related incidents can be completely eliminated by avoiding social drinking during work-related events altogether, especially at out of town conferences and meetings where a significant amount of unlawful sexual conduct tends to occur.
Obtain a Copy of All of the Employer’s Sexual Harassment Policies
Most employers have employee handbooks that outline their official harassment, complaint, and investigation policies. Most employers do not follow their own policies. The handbook can be very useful at deposition in representing the employer as one which is hypocritical and fails to follow required law regarding sexual harassment in addition to its own policies.
Employers also often have Mission Statements, which describe core values and how the employer values and treats its employees. Most employers do not follow any of their written materials. They can be used against them, including as a document in a PowerPoint presentation. If an employer does not have a sexual harassment policy, it is further evidence of the employer’s malfeasance in not maintaining a harassment free work environment and protecting its employees from harm.
Make a List of All Potential Witnesses, Including Anonymous Witnesses
Many employers are willing to mediate sexual harassment cases before a lawsuit is filed against them in state or federal court. Each witness can significantly increase the damages in a sexual harassment case. Witnesses who are still employed by the defendant employer are often reluctant to participate, but sympathetic to the victim. They can provide anonymous witness statements for the purposes of mediation, which can be powerful and effective. It is important to have them sign the statements even if they have requested anonymity because they may try to retract their statements or subsequently become influenced by the employer. Witnesses should also be contacted as soon as possible before their memories fade or they become fearful of retaliation if they become involved.
Dealing with the Psychological Symptoms of Harassment
If you are experiencing emotional distress, depression, anxiety, or other psychological symptoms because of sexual harassment or sex discrimination, communicate them to your doctor, discuss treatment, and request a referral to a psychologist for counseling or therapy. Employer defendants and their counsel will reduce the value they place on the emotional distress damages for sexual harassment claims if the victim has not sought medical treatment for their symptoms. Therapy and prescription medication can help the victims recover from their traumatic experience and recover from trauma over time. Preemptive letters regarding invasion of privacy and motions to quash subpoenas for irrelevant and personal information unrelated to the victim’s claims should be submitted as soon as possible to protect the victim’s privacy rights when employers are simply on a fishing expedition for unfavorable information from the victim’s schools, medical records, or former employers.
1 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); Faragher v. City of Boca Raton, 524 U.S. 75, 806 (1998).
2 2 CCR § 7286.6(b); see State Dept. of Health Services v. Superior Court (McGinnis), 31 Cal. 4th 1026 (Cal. Ct. App. 2003); Myer v. Treatwest Resorts, Inc., 148 Cal. App. 4th 1403 (Cal. Ct. App. 2007).
3 See, e.g., Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992, 1002 (Cal Ct. App. 1995).