Harassment is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, (ADEA) and the Americans with Disabilities Act of 1990, (ADA). But what is unlawful harassment in the workplace, specifically? A number of things. The U.S. Equal Opportunity Employment Commission (EEOC) defines workplace sexual harassment as "unwelcome sexual advances or conduct of a sexual nature which unreasonably interferes with the performance of a person's job or creates an intimidating, hostile or offensive work environment."
Harassment becomes unlawful when 1. Enduring the offensive conduct becomes a condition of continued employment, or 2. The conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile or abusive, according to the EEOC.
But what standard is used by the courts to determine if a behavior is offensive? Petty slights, annoyances and isolated incidents (unless "extremely serious") will not be considered illegal, according to the EEOC.
Here's your step-by-step guide to suing for sexual harassment.
1. Ask Yourself: "Am I being Sexually Harassed at Work?"
If you are, it's grounds for a harassment lawsuit. Ask yourself if your coworker, boss or another person in the workplace is sexually harassing you or if what happened was an isolated incident or a petty slight. If it's more than, you'll want to review your company's policies and gather as much evidence as possible.
"Sexual harassment in the workplace is unlawful under both state and federal laws," says David Reischer, Esq. Attorney & CEO of LegalAdvice.com. "It is important to gather as much documentary evidence to support a claim. Review company policies and and reporting mechanisms to notify a supervisor or human resources of the harassment. A complaint should be filed with the EEOC and the EEOC will investigate the claim and work with a company to provide a remedy. Finally, if the EEOC does not help resolve the claim, then a civil suit may need to be brought. It is important to gather as much documentary evidence and eyewitness testimony as possible to be successful in a suit."
2. Confront the Harasser and Follow Procedures
Now that you've made up your mind that you're pretty positive what you're dealing with constitutes as sexual harassment, you'll want to confront the harasser and follow procedures for reporting.
3. Consult a Lawyer
You'll want to find a lawyer who can offer you legal advise before you really start taking a deep dive into the process of suing for sexual harassment. They can help you navigate your rights and the process itself.
"When someone wants to sue for sexual harassment, specifically in the workplace, finding the right lawyer is integral," says Lyndsay Markley, founder and lead attorney at Lyndsay Markley Law. "They need to find a lawyer who will support them through this journey and help them feel heard and made a part of this process. The lawyer can help with all of the steps needed to take to sue. First, a complaint must be filed with the Federal Equal Employment Opportunity Commission... which enforces all of our federal anti-discrimination laws in the workplace. From there, the lawyer and individual can decide what steps to take to receive justice."
That said, you don't necessarily need a lawyer just yet.
"The person doesn't need a lawyer to file an EEOC complaint, but having a lawyer would be useful & helpful," adds Tina Willis, an Orlando personal injury attorney and owner of Tina Willis Law. "The person may also stay on the job. Retaliation for filing lawsuits and EEOC complaints is illegal and can form the basis of yet another claim against the employer. The person should also document as much as they can about the specifics of the sexual harassment, including any witnesses, witness contact info (including phone numbers and home addresses, since people may change employers over time) and exactly what was said or done, along with the dates and times of the harassment. Lastly, the evidence must be strong, clear and fairly extreme to justify a lawsuit."
4. File the Complaint
Finally, as mentioned above, you'll need to file a complaint with the EEOC. This is a necessary step — and one that will take quite some time and effort.
"The first step is to file a complaint with the agency in charge of handling sexual harassment claims... Bringing your claim before the proper agency is a prerequisite to filing a lawsuit in court," says Lucas Newbill, a civil rights and employment law attorney practicing out of Brookline, Massachusetts. "Time is of the essence, in Massachusetts a complainant generally has only 300 days to file a claim with MCAD. Once you have filed a complaint at an agency like MCAD, you are in a stronger position because any negative actions the employer takes against you may be viewed as retaliation for filing the complaint, which is a claim in and of itself (i.e., you can lose on the sexual harassment claim and still win on the retaliation claim). The employer will have a chance to offer its position on the matter, and you will have a chance to offer a rebuttal.
How Does the Complaint Process Work?
"If you believe that you have been sexually harassed, please locate the local office nearest to you, and give them a call," attorney M. Reese Everson says. "You are allowed to visit their office (walk-ins are usually welcome) to speak with a member of their staff to explore whether you have a claim. If you have a claim, it is your decision whether or not to file it. But if you think you have a claim, you should certainly reach out to your local EEOC office and meet with them to have a free, confidential evaluation."
Here's how the EEOC claim process pans out, according to Everson.
"When you decide to file a claim with the EEOC about sexual harassment, it is imperative that you file it as soon as possible," he says. "After the incident occurs, you only have 180 days to file the claim with the EEOC (and 45 days if you are a federal employee or federal job applicant). You can file the claim in person, by mail or over the phone."
Filing a claim initiates the process by which the EEOC investigates the instances of sexual harassment that the victim recounts. Once a claim is filed, an employer is legally prohibited from punishing the victim in retaliation. Specifically, the employer cannot fire the victim, lay them off, or demote them for cooperating with an EEOC investigation or filing a claim.
As mentioned above, the EEOC policy emphasizes that an employee or job applicant filing a federal sexual harassment claim must begin the process at the workplace itself. This requires the applicant to take the following initial steps, according to Everson.
- Tell the harasser to cease and desist from this unacceptable behavior.
- Report this behavior to a supervisor or someone else with authority in the company.
- Generally follow the company complaint process, or put together a written report detailing the harassment i.e. time, place, what was actually said or done, and, of course, the harasser’s name. Keep the report in a safe place.
"An employee can go to the next stage of bringing in the EEOC if the harassment continues or if he or she feels too intimidated to file a report at the workplace," he adds. "Once the employee decides to involve the EEOC, the first step is to contact the EEOC informally. At this session, the employee will go into detail with the EEOC official about the harassment, possibly fill out a questionnaire and provide as much evidence as possible to show that harassment has occurred. Based on the information that the employee provides, the EEOC official will inform the employee as to whether a complaint constitutes a violation of the laws that the EEOC enforces. This EEOC service is free and the employee may bring a lawyer to the session with her."
If the EEOC finds that the information that the employee provides points to a violation of the laws that the EEOC enforces, the employee can file a formal written charge with the EEOC against the employer with specific forms provided by the EEOC. These forms ask for specific information about the sexual harassment and, again, the employee has 180 (or 300 days depending upon the state's law) to file the charge.
"Contact with the EEOC is confidential until you file a formal charge," Everson adds. "It is possible not to file a charge, but that choice precludes an employee’s ability to file the suit in federal court based on the laws that the EEOC enforces. Charges filed past the deadline or charges filed for offenses over which the EEOC has no jurisdiction are quickly dismissed."
What Happens After a Complaint Is Filed?
The next stage is mediation, which is when the EEOC attempts to get the complainant and the employer to reconcile without taking sides, according to Everson. If the employer and the complainant cannot agree, the case then goes to an investigation.
"At this stage, the EEOC assigns an investigator to the case, and that investigator may ask the employee the names of people who have information about the harassment claims," Everson explains. "(This is where your CYA file comes in). The investigator will also give the employer the opportunity to tell his or her side of the story. The EEOC can close the case if the facts do not support the employee’s claims. The processing of this claim may take up to six or nine months. The employee can decide to file a lawsuit in court prior to the conclusion of the investigation if the EEOC cannot complete its investigation in 180 days. After the investigation, the EEOC arrives at a decision and informs both the employer and the complainant of its determination."
If the EEOC holds that no sexual harassment has occurred, the charges are dismissed. The victim will be notified of their right to file suit in federal court within a 90-day period. If the EEOC holds that the employer did indeed violate the law, the EEOC tries to settle the case through conciliation.
"Conciliation is a second attempt by the EEOC to encourage the employer and employee to settle the case out of court," Everson explains. "If the EEOC, the employer, and the employee cannot agree, the EEOC has the option of filing a lawsuit itself or providing the employee with a letter of notice of his or her own right to do so. The EEOC will decide to litigate on behalf of the employee on the basis of how serious the employer’s violation has been, the implications of the legal issues and the impacts of the lawsuit on other people."
Everson adds that, throughout the entire claim process, the victim must be readily accessible to the EEOC in order to keep up with the developments and details and to safeguard the case against dismissal.
AnnaMarie Houlis is a feminist, a freelance journalist and an adventure aficionado with an affinity for impulsive solo travel. She spends her days writing about women’s empowerment from around the world. You can follow her work on her blog, HerReport.org, and follow her journeys on Instagram @her_report,