Every sexual harassment trainer, lawyer, and probably person on the street will tell you it is illegal to retaliate against someone who reports sexual harassment. Yet most people who experience harassment do not report it. Studies say 44% of women experience harassment at work, but only a fraction of those women report it. Instead, they put up with lewd comments, propositions and touching. They deflect and avoid their harassers while looking for another job or transfer. The EEOC reports that of all the strategies someone could use to manage harassment, reporting is the least frequent.
I’ve been counseling and representing people experiencing sexual harassment for many years. I never discount a woman’s fear that she will be retaliated against if she reports sexual harassment; I’ve seen it far too many times. For example, a woman reports her supervisor for sexual harassment. After a brief investigation, he resigns. A few weeks later, she is fired. The company’s excuse? She couldn’t get along with other employees who blamed her for getting her harasser fired. Another woman puts up with lewd texts and propositions for an extended time. When she finally reports the supervisor, he says it was consensual, pointing to her failure to shut him down. HR believes him and he manages to force her from job by undermining her performance.
When people tell me they are reluctant to report harassment because of the repercussions, I assure them that retaliation is illegal, but add that doesn’t mean they won’t experience it. They have to be prepared to have the harassing conduct minimized and even be disbelieved. Their employer may treat them as too sensitive or vindictive. Every person has to weigh the cost and benefits of challenging illegal discrimination for him or her personally.
There is another interest at stake, however. How will we ever eliminate harassment and change society for the better if we don’t challenge it? Many people I speak with are heartsick about the harassment they are experiencing, not just because they want to be respected at work, but also because they want to do something about it and are afraid. Not standing up can be as painful and haunting as complaining and taking the consequences. Whatever progress we have made as a society and culture is due to brave people taking risks and calling out illegal and immoral behavior despite the consequences.
If you have weighed the risks and decided to come forward to report harassment, it is wise to know the obstacles to a successful retaliation claim at the outset. That way, if your company does not do the right thing, you are well positioned to bring a legal claim. Here are some things to remember:
- Make sure you call the treatment you are experiencing “sexual harassment” or a “hostile environment.” You are only protected against retaliation if your employer knows you are complaining about discriminatory behavior. If you say your boss is bullying you, that may not be enough, even if the behavior is obviously aimed at you because of your gender.
- Include all the sexually oriented, unfair, and bullying behavior in your complaint. Don’t just rely on one off-color joke, if there were more jokes and behaviors. You don’t have to prove you were actually sexually harassed, but you do have to show you had a reasonable belief you were being harassed.
- Watch out for “adverse actions” that occur after you make your complaint. While some courts require retaliation to be actions that adversely affect your pay such as terminations, lack of promotions, transfers, and discipline, you should question whether you are being retaliated against if you receive a critical performance review or are suddenly disinvited to meetings. Calling out a pattern of retaliatory actions may cause the employer to stop, and sets up a stronger legal case if they do not.
- If you think your employer is retaliating against you, complain about that immediately. Courts require employees to show a causal connection between a complaint of harassment and the adverse action. It is very helpful to show that the retaliation started very soon after your complaint.
Being sexually harassed at work is a debilitating experience. Being afraid to report the harassment is very common. Many companies will do the right thing and react appropriately to complaints of harassment. Some do not. You probably have a good idea what your company’s reaction will be because you know the culture. Overcoming fear of retaliation is crucial to improving your own work experience and to making social change.
