Written by attorney Katrina Margaret Saleen

Common Mistakes of Sexual Harassment Victims

1 Not Telling the Harasser to Stop 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 2 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. 3 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. 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. 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. 4 Failing to Follow-Up After Complaining to the Employer 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. 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 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. 5 Not Getting Mental Health Care Early 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. 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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