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.
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.
Not Documenting the Harassment
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.
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.
Not Reporting the Harassment Early
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. If the defendant employer successfully brings this affirmative defense, it is 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.
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.
Failing to Follow-Up After Complaining to the Employer
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.
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 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 and stop the harassment.
Not Getting Mental Health Care Early
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.
These complex and troubling effects on victims of sexual harassment can be extremely difficult to deal with. Victims should not think that they need to cope with them alone. Victimsshould seek professional help from a psychiatrist or psychologist to deal with managing the emotional distress they face as a result of the sexual harassment.
Not Knowing What Constitutes Actionable Sexual Harassment or Discrimination
It is important for victims to know their rights. Education is a powerful step in moving forward with the next steps in stopping the harassment and filing a lawsuit if the victim has a viable claim.
Employees that are treated poorly in the workplace sometimes wish to sue their employer for harassment. However, a victim can only sue for harassment in California if the harassment is based on the victim's protected status, for example race, age, religion, sex, or sexual orientation.
Victims are also sometimes surprised that 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, where a term of employment is based upon accepting an unwanted sexual advance, and hostile work environment sexual harassment, where the harassment must be sufficiently severe or pervasive.
Not Understanding Retaliation
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.
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.
Taking Management's or HR's Word For a Determination That the Victim Does Not Have a Case of Harassment
An employer's human resources department has the goal of protecting the employer. The information management gives to an employee who has suffered from sexual harassment will likely be skewed to protect the company.
A manager or HR director might claim 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.
Also, even if management or the HR 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.
Failing to File an Administrative Complaint in Time
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.
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 and that victim will not be able to move forward with a lawsuit. See our resources below for the applicable statutes of limitations for filing an administrative complaint with the California DFEH and the EEOC.
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.
Not Checking for an Arbitration Agreement
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. 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.
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. In a contractual arbitration, the parties generally have agreed in advance to be bound by the award that the arbitrator issues after the hearing.
An attorney can assess an employee's rights after reviewing the arbitration clause.
Not Getting an Attorney Involved Early in the Process
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. 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. After attaining a right to sue letter from the EEOC or the DFEH, an attorney can then file a complaint with the appropriate court and can work on negotiating with the defendants while preparing for litigation.
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.
Additional resources provided by the author
For basic information on sexual harassment laws in California, see the Broderick Law Firm's free e-book, A Victim’s Guide to Sexual Harassment, and e-magazine that is regularly updated with articles on sexual harassment.