Too often we have heard defenses in sexual harassment cases that the employee did not appropriately complain sexual harassment. Here is a list of what to do when complaining about sexual harassment.
1. Sexual harassment should be complained about. Besides the fact that a complaint might stop the sexual harassment, there are legal reasons why sexual harassment needs to be complained about. While companies are strictly liable for a supervisor’s sexual harassment, they have a defense that had the person who was sexually harassed complained and the complaint would have stopped the harassment they are not responsible for damages after the complaint. If the sexual harassment was done by a coworker, the employer is generally not liable for the sexual harassment until a complaint about sexual harassment is made.
2. Be specific in your sexual harassment complaints. Do not hold back and not mention the worse part of the sexual harassment. For instance, if a very bad form of sexual harassment happened such as the sexual harasser touched your breasts, or the sexual harasser touched your buttocks be sure to mention exactly that in your sexual harassment complaint.
3. Put your sexual harassment complaint in writing so that your employer cannot deny that you made the sexual harassment complaint. Too many times employers claim a sexual harassment complaint was not really a complaint about sexual harassment, but was a complaint about how the employee did not get along with their supervisor or that their supervisor was being a jerk about work related issues opposed to having engaged in sexual harassment. We have also heard too many defenses that the employee did not complain about a crucial aspect of the sexual harassment allegations they have later made in their lawsuit. Do not allow the employer a copout. Create a written record of your sexual harassment complaint.
4. Keep a written copy of your sexual harassment complaint.
5. Make sure your sexual harassment complaint goes to the appropriate levels of management and human resources.
6. If you are taking notes about terrible workplace conduct that occurred, do not leave out what is legally actionable such as sexual harassment. Do not forget to mention that you were sexually harassed, and how you were sexually harassed on a day you wrote in your journal. If your journal reflects a lot of feelings of workplace injustice, but fails to mention critical and offensive acts of sexual harassment your journal may be used against you.
7. Do not make admissions about what did not bother you, or that you did not think much of a pattern of sexual harassment until such and such day.
8. Do not attempt to justify the sexual harasser’s actions. For instance, do not say something like, “I just thought he was being friendly.” If you felt that way, there is no reason to tell that to the employer. They will only use it against you.
9. Be careful about who you suggest or do not suggest is a witness to the sexual harassment.When it comes to naming witnesses, it would be best to speak to an experienced sexual harassment lawyer. Putting names of people who may not have been present when an act of sexual harassment happened is dangerous. Putting names of people who are not likely to tell the truth may be dangerous. Not putting any names of witnesses can also be dangerous, but often there are not witnesses to sexual harassment because the sexual harasser does not want to get caught. Who to put as a witness is an inherently complicated question that you need to discuss with an experienced sexual harassment lawyer.
10. Be specific about what actions you want your employer to take on your sexual harassment complaint. This is another area that you should consult an experienced sexual harassment lawyer about. Making comments like, “I don’t want him fired, I am ok working with him,” may be the wrong thing to say. The employer may later defend your sexual harassment case on the basis that you said you could work with the sexual harasser so how bad could he be. Your sexual harassment lawsuit might uncover that the sexual harasser was a serial harasser, or you might find that others view the sexual harassment as completely unacceptable to the point the sexual harasser should have been fired. In those circumstances, one might wonder why you did not want the sexual harasser to be fired.
The Employment Lawyers Group has handled hundreds of sexual harassment lawsuits. We have tried sexual harassment lawsuits in court, arbitrated sexual harassment lawsuits, and settled many sexual harassment lawsuits regardless of whether the person who was sexually harassed was fired or not. I am the firm founder, Karl Gerber. I was quoted 10 years ago as an expert on sexual harassment by the main Los Angeles lawyer’s ../news/paper. While the State Bar does not allow lawyers to hold ourselves out as experts in sexual harassment, I can tell you that I have been hired by lawyers in most state of the United States as an expert witness in sexual harassment cases. I wrote this article in approximately 20 minutes just thinking through, in my mind, how sexually harassed employees could make a better record of their workplace injustice. This article is purely based upon my experiences representing employees in sexual harassment lawsuits. This is not hypothetical advice. This is advice based upon direct experience in hundreds of California sexual harassment cases, and expert witness services in sexual harassment cases all across the country. You are welcome to contact me if you have questions about a sexual harassment situation.