A BEGINNER’S GUIDE TO WORKPLACE SEXUAL HARASSMENT CLAIMS
This may be the Spotlight moment for sexual harassment with the #metoo movement, as every day some new revelations of past sexual misconduct bring down another Hollywood big shot, media executive, or politician. While the statute of limitations has long run on most claims that could be brought against these famous men and the organizations behind them, many women may be wondering about their own workplace experiences.
Here are some basic answers to questions about sexual harassment in a professional setting. Remember that whenever you ask an attorney for legal advice, your communications are confidential, so you should not hesitate to talk with an attorney if you believe you are the victim of sexual assault or sexual harassment in the workplace.
- What is sexual harassment?
The first distinction to make is between sexual assault and sexual harassment. Sexual assault is unwanted sexual touching, anything from groping to kissing to rape. Sexual assault is a crime, as well as a violation of company policy. However, confusion can arise when trying to determine if the touching was unwanted or sexual:
- Unwanted: Did the recipient consent? Did the consent continue or did the recipient withdraw consent at some point? Would a reasonable person in those circumstances understand that the recipient no longer consented?
- Sexual: Did the person doing the touching have a sexual intent? That is, was it a grope or just an accidental graze? With overtly sexual conduct, like kissing or rape, this is easy, but most if not all women can think of a suspicious hand on her fanny or arm brushing her chest that she has wondered about over the years.
These same gray areas concerning consent and intent exist when prosecuting sexual assault crimes outside the workplace.
Sexual harassment, on the other hand, traditionally falls into two categories. One is called quid pro quo, which is the classic idea that the harasser offers some kind of job-related reward in exchange for sexual favors, or retaliates in a job-related way for the withdrawal of previously-granted sexual favors. This is the Hollywood casting couch; the raise for sleeping with the boss; or the bad job review when you stop sleeping with the boss.
The second kind of sexual harassment is called hostile work environment. This could be anything from dirty jokes to Harvey Weinstein showering in front of you. To rise to the level of a hostile work environment, the behavior must be so “severe or pervasive” that a reasonable person would find it abusive.
- How long does someone have to bring a claim?
The time limits, or statutes of limitations, vary from state to state and are different for different types of claims. Civil claims for sexual harassment typically have deadlines as short as one or two years that run from the date of the offending behavior. Depending on the type of claim, you may also be able to file with the Equal Employment Opportunity Commission in federal court or the state equivalent. There may be deadlines of 12 months or even less to file such claims.
Different statutes of limitations apply to criminal claims for sexual assault and may be much longer than the deadlines for civil lawsuits, depending on the severity of the assault.
- How can you protect yourself from sexual harassment?
Boundaries! Define and defend your personal boundaries. If you decide beforehand what you will not tolerate, and how you will respond if you encounter improper behavior, you will be ready to fend off harassment before it develops. For example, in the work context:
- Practice saying, “Knock it off!” Say it out loud and firmly, but not angrily. The idea is to be ready to say to a work colleague, or even a client or boss, “Knock it off! That isn’t appropriate in a professional setting.” You don’t want to end the professional relationship, just stop inappropriate conduct. If you practice, you will be ready to say it when faced with a wandering hand or sexual proposition.
- Create your own personal policies and follow them. You will avoid a lot of arguments by simply having a policy that allows you to avoid tricky situations. For example, have a policy against going to a coworker’s hotel room, going out for drinks alone with a professional contact, not sharing a cab after dinner with only one other person, or whatever. You might get pushback, but people are less likely to argue against a general “policy” than a list of reasons you give for avoiding a particular situation.
- Don’t sabotage your own boundaries. We are all human, and no one acts perfectly in the workplace any more than we act perfectly anywhere else. But if we are going to hold sexual harassers responsible for their bad conduct, we have to take responsibility for our own. And under the law, a jury in a civil case will compare conduct, whether you think that is fair or not. So drink in moderation when in a professional setting. Think twice about that office romance. And by all means, follow your company’s sexual harassment policies, whether this means reporting inappropriate conduct, or not engaging in inappropriate conduct yourself.
- What elements make a case particularly hard to win for the victim? What elements increase the likelihood of a win for the victim?
No sexual harassment case is easy because they involve the classic she said/he said conflicting narrative (or he said/he said, whatever the case may be). What makes it more or less likely that a victim will prevail often comes down to common sense stuff, even if it doesn’t seem fair. For example, it is easier to prove a case if the harasser has done the same thing before, or if there are eye witnesses to the conduct. It is harder to prove a claim if the conduct took place entirely behind closed doors. If there is a question of consent, cases are harder to prove.
- When should a victim think twice about taking legal action?
Not all wrongs can or should be righted through legal action, either for legal or personal reasons. Victims of sexual assault or sexual harassment should avoid filing a civil lawsuit after their statute of limitations has already passed, because such a claim would be “frivolous” and could subject the person to sanctions. Time limits for filing claims vary from state to state and may be extended under different circumstances.
As a first step, in the case of sexual assault, we counsel clients to report the criminal conduct to the police, no matter when the crime happened. Not all of our clients follow this advice, and that is their choice, but if a crime has been committed, we believe it should be reported. If a victim intends to file a civil lawsuit, it is very important to first report the criminal conduct to law enforcement.
Finally, victims need to make their own decision about what is best for them. Litigation is stressful, time consuming, expensive, and risky. Especially in a sexual harassment case, the victim’s personal life will be exposed and picked over, including possibly everything the victim has ever put online, on social media, dating sites, or even email. There is only so much protection a lawyer can promise her client.
If filing a lawsuit is not an option, for whatever reason, we encourage victims of sexual assault or harassment to find other support. Working with a counselor you trust, who has experience working with sexual assault survivors or people who have experienced workplace harassment, can be a good start.
- Has the tide has turned on making it easier to win sexual harassment cases now and in the future?
We see the tide of public opinion turning. It is too soon to tell whether today’s news stories about misbehaving celebrities, executives, and politicians will actually affect the law one way or the other. The more people who come forward with their own stories, and hold individuals and organizations accountable, the more real change will happen.
