November 8, 2016
In recent weeks and months, we’ve read disturbing headlines with all sorts of arguments from alleged sexual abusers sharing that the women claiming they were touched inappropriately or abused were either lying, too ugly to be harassed, or planted by another group or faction. For women all around the world, sexual misconduct and harassment is something we’re all too familiar with, and we know that something powerful has to be done.
To be clear, sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Very generally, “sexual harassment” describes unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.
The statistics don’t lie: In a new poll conducted by Morning Consult, 45% of female respondents said they have experienced unwanted physical conduct or touching of a sexual nature. In addition, more than half of the women who took the survey said they’ve been the recipient of unwelcome sexually-charged jokes (60%), been present when comments of a sexual nature were made about another woman (59%), and been catcalled (56%). Another recent poll revealed that one in three women has experienced sexual harassment at work at some point in their lives.
My story isn’t any different. Throughout my 18-year corporate career, I was touched inappropriately, received disturbing and unwelcome advances, and was sexually harassed by a senior executive in ways that negatively impacted my job, my performance, and my well-being, and so have millions of other women.
To learn more about how women can rise up bravely for themselves and take a stand against this unacceptable (and illegal) behavior, I connected with Tom Spiggle, author of the book You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace. Tom is the Founder of the Spiggle Law Firm, with offices in Arlington, Virginia, Nashville, Tennessee, and Washington, D.C., where he focuses on workplace law helping protect the rights of clients facing sexual harassment in the workplace and wrongful termination.
Here’s what Tom shares:
Kathy Caprino: As one who’s been sexually harassed and was afraid to report it officially, I’ve lived this experience and seen that thousands of other women who’ve experienced harassment go underground and never talk about it. From your legal experience, what contributes to this?
Tom Spiggle: It is a combination of two factors: first, the real difficulties of fighting sexual harassment and, second, a mistaken belief that the option is to do nothing or wage and all-out battle.
As to the first factor, there are very real difficulties that women face when they fight sexual harassment. It doesn’t take much poking around on the Internet to find women sharing stories of do-nothing HR departments, or worse, upper management turning against the women who report harassment.
On the second, when many women think about seeing a lawyer, they imagine the very public battles that often involve a woman plaintiff suffering body blows by well-funded defendants – e.g., “she asked for it,” “she is just upset because she was a bad employee.”
Caprino: What are the real-life facts about the penalties and punishments women face when they report harassment?
Spiggle: The difficulties start from the beginning.
When She Brings The Issue Up To Family, Co-Workers And Friends
Though this is beginning to change as the workplace becomes less tolerant of sexual harassment, some women today experience push-back from friends and family.”Are you sure he meant to touch you?” “Is it possible that you lead him on?” “Do you really want to pick a public fight where they drag you through the mud?”
When She Reports To HR
While there are many excellent professionals in human resources, a woman reporting harassment to HR is likely to learn two uncomfortable facts:
First, when push comes to shove, HR is there to protect the company, not the wronged employee. For that reason, “investigations” conducted by HR departments into allegations of sexual harassment can often turn into interrogations of the woman. Second, HR departments are not good at keeping matters confidential. A woman walks into the HR department and shares painful experiences in a closed office, only to find that the next day other co-workers know. Co-workers once considered friends suddenly stop dropping by to chat. A manager normally very complimentary, overnight seems to find fault where none exists.
Barriers To Getting Through The Courthouse Door
Assuming that a woman musters up her courage and runs through this gauntlet, there are very real legal challenges that stand of the way of sexual harassment claims. The first is with the Equal Opportunity Employment Commission (EEOC). A woman bringing a charge of sexual harassment is required by law to file with EEOC and then give the agency at minimum 180 days to complete an investigation. Many women then learn that the agency, though it is staffed with hard-working people, can be slow and ineffectual. Some investigations consist of nothing more than a few phone calls. The agency also dismisses most cases, even good ones. After all that waiting, some individuals may get a letter called a “right to sue,” which essentially says they couldn’t determine a violation happened so your only recourse is to sue in federal court within 90 days. Many cases die right there.
If a woman proceeds beyond this point, her only real chance is if she hires a lawyer. (While it is possible to file a case in federal court pro se, or without an attorney, winning a case in that way is close to impossible given how complex the law is.)
Even when a woman has the confidence and resources to look for an attorney, finding an attorney knowledgeable about sexual harassment law who is willing to take on a difficult case can be a challenge. Indeed, outside of urban areas, there may be no attorneys who are willing handle such a case.
At that point, if a woman does sue, she may find that her employer is willing to fight dirty, dragging her through an emotionally draining process. And sexual harassment statutes allow for recovery of emotional distress damages, which means that an employer can dig through the personal life of a woman suing, for example, by finding out if she was seeing a therapist for depression before the harassment occurred.
And a woman who sues in court now has a public record of her dispute available for anyone interested to read. Particularly for high-level professional women, this represents the risk that other employers could decide not to hire her. Even though this rarely happens, the fear about being “the one who sued” is real.
Caprino: You paint a bleak picture, for sure. What’s the best course of action for women to take, if/when they’ve been harassed?
Spiggle: After laying out the parade of challenges above, it is a wonder that any women choose to pursue holding their harassers accountable for their unlawful conduct. But the truth is that it is quite possible to achieve some level of justice by pursuing a claim against the company.
Here are the steps women should take if faced with sexual harassment:
1. First, talk to a lawyer with experience in the field. Some women worry that a lawyer will try to talk them into suing, but most lawyers would prefer to start with other options. And unlike the HR department, your conversation is strictly protected by attorney-client privilege.
2. Second, consider secretly recording your boss. In some states, it’s perfectly legal to record a conversation you are in even if the other side has not consented. (Check the law before attempting this.) If you live in one of these so-called “one-party recording” states, you may be able to get really damning evidence.
3. If you are still on the job, check the company handbook for the process on reporting harassment. If you can’t find one, report the harassment in writing to HR or someone in management. This may not help your situation immediately—it could even make it worse—but it allows you to pursue claims later and offers some legal protection from retaliation.
4. Then, file with the EEOC. Even though it’s unlikely to help, you must file to protect your claim. You must file your claim within 180 or 300 days—it varies on the jurisdiction. One caveat: Federal anti-discrimination law only applies to companies with 15 or more employees, though your state law may go further.
Caprino: What improves the chances for women to win either a settlement or litigation based on their claims?
Spiggle: Here are the factors that can make for a winning sexual harassment suit.
– Egregious behavior, including over the top harassment, showing porn in the workplace or unwanted touching.
– Strong evidence in the form of recording, emails or witness (like other co-workers) testimony.
– Evidence that the employer retaliated against the woman after she tried to do the right thing after reporting. Retaliation can include firing, but need not be that severe. A demotion or reassignment of duties can count as retaliation under the law.
Women need to remember, however, that it is entirely possible to win a settlement—even a confidential one—from her company even if she doesn’t have a smoking gun. I’ve seen women bring legal action and win a confidential settlement that gave them a financial cushion to move on to their next job.
But these are decisions that women need to make by talking with an attorney. A woman who quickly finds another, better-paying job may be able to prove her old employer broke the law, but because the damages would be limited, it may not be worth it to fight.
Caprino: Who should they consult and where can they get top-level support?
Spiggle: Women facing harassment at work or being fired because of it need to consult with a lawyer knowledgeable about sexual harassment cases who represents employees, not employers. A divorce lawyer or personal injury attorney is not going to cut it. An Internet search for a “discrimination lawyer” “wrongful termination” lawyer will produce results. An excellent source for finding lawyers nationwide is through the National Employment Lawyers Association, which you can find online at www.nela.org. All lawyers on this site are dedicated to helping employees. Other websites that can be helpful resources include www.avvo.com and www.nolo.com.
Caprino: Any other essential information women need to know?
Spiggle: The most important information to know is that you need not gear up for a year-long court battle to stand up for yourself. Education and guidance from a good lawyer can go a long way towards putting you back in control.
To build more power, authority and confidence in your career, work with me, and take my 16-week career transformation video training program.
Article originally appeared on https://www.forbes.com/sites/kathycaprino/2016/11/08/what-to-do-if-youve-been-sexually-harassed-in-the-workplace/#125d81c63cf8
