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Not Telling the Harasser to Stop |
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In order to prove a cause of action for sexual harassment, the plaintiff must show that the harasser’s behavior was unwanted. In order to be sure that the harasser knows that his or her conduct is unwanted, a victim should tell the harasser to stop. |
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A victim of sexual harassment should clearly tell the harasser that his or her conduct is inappropriate and that they want the harassment to stop. If this does not work, or if the harassment victim feels too scared to verbally confront the harasser, the victim can write a letter telling the harasser to stop his or her misconduct. A victim can also have a third party tell the harasser to stop behaving inappropriately |
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Not Documenting the Harassment |
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As the harassment occurs, it can be helpful in later litigation to have a written account of each incident of harassment that took place. As part of documenting the harassment, make sure to save any memos, letters or emails that are related to the harassment, but be careful not to violate the employer’s confidentiality and proprietary information guidelines. |
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Also make sure to document all negative actions, and not just the harassing conduct. For example, keep track of any performance reviews, demotions, position title changes, or similar events. |
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Not Reporting the Harassment Early |
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Under California law, there is an affirmative defense to limit damages in harassment actions called the avoidable consequences defense, which an employer may raise when a sexual harassment victim delays reporting the harassment to the employer. California courts have recognized that a defending employer has the ability to plead an affirmative defense in sexual harassment and discrimination cases under the Avoidable Consequences Doctrine. Under this doctrine, if a victim of sexual harassment delays or fails to complain to the employer or fails to make timely use of the employer’s sexual harassment policy, the defendant employer can bring the affirmative defense that they are not liable for damages that could have been avoided by the victim, if the victim had made a timely report of the harassment. For this reason it is especially important for a victim of sexual harassment to make a timely complaint regarding the harassment to management or the human resources department, and to follow any procedures set in place by the employer to prevent sexual harassment. |
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A victim of sexual harassment should let a supervisor and/or the human resources department know what is happening. The victim can tell the human resources department what steps have already been taken to stop the harassment, and what they would like to see happen next. |
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Failing to Follow-Up After Complaining to the Employer |
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After an employee makes a complaint to his or her employer regarding sexual harassment, the employer is required to take action. The California FEHA states that employers must take all reasonable steps to prevent unlawful harassment. California and federal law requires that an employer must take remedial action in response to a report of sexual harassment. |
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Once an employer discovers that their employee is participating in sexual harassment, the employer is obligated to take remedial action that is reasonably calculated to end the harassment by means of imposing adequate consequences to make certain that the workplace will be free from sexual harassment. If the remedies put in place by the employer do not result in an end to the harassment, the employer must institute harsher disciplinary actions until the harassment stops. |
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After an employee makes a sexual harassment complaint to his or her employer, the employee should not stop there. The employee make sure that the employer is taking action to end the harassment, and that sufficient consequences are imposed. An employer is liable for failing to take sufficient remedial action to end workplace sexual harassment. An attorney can help an employee victimized by sexual harassment to analyze the actions taken by the employer and to assess if the employer has done enough to rectify the situation. An attorney can also write a demand letter for the employee, requesting that the employer take certain further steps to remedy the situation and stop the harassment. |
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| 5 |
Not Getting Mental Health Care Early |
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Another mistake that victims of sexual harassment sometimes make is thinking that they should cope with the affects of sexual harassment on their own. Victims of sexual harassment may be affected by the harassment in a number of debilitating ways. A sexual harassment victim may suffer from depression, anxiety, traumatic stress, sleeplessness or nightmares, decreased ability to concentrate, headaches, fatigue, stomach problems, anger, withdrawal and isolation, or problems with intimacy. At work, the victim may experience decreased work performance, increased absenteeism, defamation of character and reputation, and loss of recommendations as a result of the harassment. |
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These complex and troubling affects on victims of sexual harassment can be extremely difficult to deal with. Victims of sexual harassment should seek professional help from a psychiatrist or psychologist to cope with their problems and to deal with managing the emotional distress they face as a result of the sexual harassment. |
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If a victim of sexual harassment does seek help from a mental health care practitioner, the treating mental health care practitioner may later testify as a witness about the effects of the sexual harassment on the victim. While seeking the counsel of any mental health care practitioner can be helpful to a victim of sexual harassment, a psychiatrist is an actual doctor that has been through medical school, and therefore has more credentials as a witness in the victim’s sexual harassment lawsuit. A victim should consider seeking professional help from a psychiatrist or psychologist to get treatment for the debilitating and stressful physical and emotional affects of sexual harassment as soon as possible after the harassment. |
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Not Knowing What Constitutes Actionable Sexual Harassment or Discrimination |
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It is important for victims to know their rights. Using tools such as literature on sexual harassment and the advice of an attorney to understand what conduct constitutes sexual harassment is a powerful step in confirming a victim’s rights and can build confidence and assist in moving forward with the next steps in stopping the harassment and filing a lawsuit if the victim has a viable claim. |
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Employees that are treated poorly in the workplace sometimes wish to sue their employer for harassment. However, many people have the misconception that all workplace harassment is actionable and can be the basis for a viable lawsuit. This is not the case. A victim can only sue for harassment in California if the harassment is based on the victim’s protected status, for example the victim’s race, age, religion, sex, or sexual orientation. Actionable sexual harassment is limited to unwanted offensive conduct in the workplace, which is based on the employee’s sex. |
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Victims are also sometimes surprised to discover that the legal standard for what constitutes actionable sexual harassment is more limited than what types of conduct society generally views as unacceptable workplace behavior. Just because someone acts inappropriately at work, or makes rude sexual comments, does not necessary mean that the recipient of that conduct will have a viable sexual harassment case. Actionable sexual harassment includes quid pro quo sexual harassment and hostile work environment sexual harassment. Quid pro quo sexual harassment occurs when a term of employment is expressly or implicitly conditioned upon acceptance of an unwelcome sexual advance. Hostile work environment sexual harassment occurs when an employee is subject to unwelcome sexual or gender-related conduct that is sufficiently severe or pervasive to create a hostile or abusive working environment. |
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| 7 |
Not Understanding Retaliation |
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It is illegal for an employer to retaliate against a sexual harassment or discrimination victim for filing a charge with the DFEH or EEOC, participating in a sexual harassment investigation, or opposing discriminatory practices. If, for example, an employee makes a claim of sexual harassment that does meet the legal criteria of being sufficiently severe or pervasive, then the employer retaliates with adverse employment action against the employee, the employee still has the claim for retaliation independent of the merits of the sexual harassment claim that triggered the retaliation. When the underlying claim for sexual harassment has legal merit and the employee has suffered retaliation in addition, the employee will typically bring claims for both sexual harassment and retaliation. |
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Not understanding retaliation is mistake which can affect sexual harassment victims in two harmful ways. First of all, if a victim does not realize that the law allows liability for retaliation, the victim might fail to include facts relating to the retaliation in the Department of Fair Employment and Housing complaint, and could therefore lose the ability to raise a retaliation cause of action later in litigation. Secondly, if a victim of sexual harassment does not realize that it is unlawful for an employer to fire or demote him or her for making a sexual harassment complaint, the victim might be more likely to stay quiet and allow the harassment to continue. It is important that victims of sexual harassment understand that if they are fired for making a complaint or filing a sexual harassment lawsuit, they will be able to bring an additional cause of action for damages due to unlawful retaliation. |
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Taking Management’s or the Human Resource Department’s Word For a Determination That the Victim Does Not Have a Case of Harassment or Discrimination |
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An employer’s human resources department has the goal of protecting the employer. After a sexual harassment victim makes a complaint to management or the human resources department, it is important for sexual harassment victims to realize that they should not necessarily take management’s word in determining whether they have a viable legal claim. The information management gives to an employee who has suffered from sexual harassment will likely be skewed to protect the company. |
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A manager or human resources director might tell a purported victim of sexual harassment that the victim does not have a case, even if there is a potentially viable claim. A manager might instead acknowledge a victim’s complaint, but tell the victim that management will take care of the problem and that there is no need to get an attorney involved. However, if an employee has been sexually harassed at the workplace, the employee should seek the legal advice of an experienced sexual harassment attorney instead of simply relying on the advice of a potentially biased representative of the employer. |
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Also, even if management or the human resources director has the best of intentions, managers and human resource directors are not attorneys, and may not understand the complexities involved in this area of the law. |
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| 9 |
Failing to File an Administrative Complaint in Time |
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As a prerequisite for a lawsuit for sexual harassment in California, a potential plaintiff is required to get a right to sue letter from either the DFEH or the EEOC. |
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If an administrative claim to the DFEH or the EEOC is not filed within the time period provided by the applicable statute of limitations, then the case is subject to being forever barred by the courts. If a sexual harassment victim does not file an administrative complaint within the required amount of time, then that victim will not be able to move forward with a lawsuit. |
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Complaints must be filed with the DFEH within one year from the date of the last incident of sexual harassment, which period may be extended up to 90 days if the alleged victim first obtained knowledge of the facts of the harassment after the expiration of the one year period from the date of the occurrence. |
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Pursuant to Title VII, a victim of sexual harassment generally has 180 DAYS from the incident of harassment to file a charge with the EEOC, but this statute of limitations is extended to 300 days if the victim institutes proceedings with the DFEH or any other state or local agency that has the authority to grant or seek relief from unlawful employment practices. |
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After a claimant files an administrative complaint and after the claimant gets a right to sue letter, then the claimant must file a private civil lawsuit within the time specified in the right to sue letter, which is within one year of the date of a right to sue letter from the DFEH. |
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| 10 |
Not Checking for an Arbitration Agreement |
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Contractual arbitration has become increasingly popular for employers over the years, and so it is important for victims of sexual harassment to check to see if they are bound to arbitration, or whether they can instead file a lawsuit in Superior Court. It is important to determine if a victim is bound to arbitration before time and resources are spent pursuing a civil lawsuit. |
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Contractual arbitration occurs when two parties agree that if they have a dispute in the future, they will resolve the dispute through arbitration instead of through the court system. An arbitration is a hearing in which the parties bring their dispute to an unbiased and neutral third person, who acts as a judge and makes a ruling. Both parties have an opportunity to be heard at the arbitration. In a contractual arbitration, the parties generally have agreed in advance to be bound by the award that the arbitrator issues after the hearing. |
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Many employers require new employees to sign arbitration agreements upon being hired. If an employee signed an employment agreement with an arbitration clause, then the employee may be forced to go to contractual arbitration instead of filing a lawsuit. However, there are rules which must be followed in order for an employee to be bound to arbitration, and an attorney can assess an employee’s rights after reviewing the arbitration clause. |
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| 11 |
Not Getting an Attorney Involved Early in the Process |
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Victims often wait too long to get an attorney involved in their sexual harassment case. It is best to get an attorney involved in your case as early as possible. Attorneys will often make a demand for settlement before the victim files an administrative complaint with the Department of Fair Employment and housing (DFEH) or the Equal Employment Opportunity Commission (EEOC). An attorney can help a sexual harassment victim to prepare to file a complaint with the DFEH or EEOC to make sure that all potential legal claims are included. A sexual harassment attorney knows the process and can help a victim in this unfamiliar legal territory to protect a victim’s rights and choose the best strategy with which to move forward. |
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