Guide To Making Harassment Complaints
Never complain about trivial matters. It does not matter legally if someone uses an occasional curse word, or looks at you cross-eyed, or tells an occasional off-color story, or asks you on a date but does not continue when you make clear you are not interested, or makes you feel uncomfortable but does not do anything that would impress a judge and jury as wrong.
You cannot succeed on a complaint about sexual banter in the workplace if you appear to have been a willing participant, even if you privately disliked it. You have to show clearly that you do not like it.
However, even if you enjoyed or pretended to enjoy sexual banter in the past you always have a right to change your mind and clearly say “no” to any more of it, and may have a claim if that is ignored. You are entitled to change your mind over time, particularly if the banter becomes too intense or gross or personal.
You have a right not to have your private life dragged through the workplace. In one famous case, a woman posed topless for the cover of a biker magazine. Someone posted the magazine cover on a bulletin board in the area where she worked, and the employer allowed it to remain. The employer was responsible for the sexual harassment she then endured at the hands of co-workers.
Dating one employee does not give other employees the right to harass you. You are entitled to say “no” to everyone else.
You can complain about conduct outside the workplace, if the employer is involved in some way. Harassment complaints frequently involve bosses’ or co-workers’ conduct at dinners and work-related social events, business travel, etc.
You can complain about conduct by third parties on the employer’s premises – customers, employees of vendors and contractors, etc. Once the employer is on notice of the improper conduct, it must take reasonable action to end the problem.
Always complain about significant matters. An employer will argue that something must not have bothered you very much if you did not think it was worth complaining about.
Complain to the person or office the employer designates for receiving harassment complaints, but remember you can complain to high-level officials as well. If these avenues do not work, complain to the highest-ranking person you can.
In cases of serious physical assault, complain to the police as well as the company.
If the employer’s harassment policy provides an “800” number for reporting complaints, always call it. Some of the numbers are disconnected, and it can help your claim a lot if you can show that at the time bad things were happening, the “800” number was not in service and no other avenue of complaint responded to your concerns.
Always make a note of the exact response the employer makes when you complain. Statements like “Oh no, not again!” or “Don’t bother us” can be extremely important in a lawsuit, but may not help if you did not make a note of the exact words or close to the exact words.
Always make follow-on complaints about significant matters. The employer is not required to fire every harasser. If the employer’s corrective action is reasonably calculated to stop the offensive conduct, that is all the law requires. The worse the conduct, and the more often the conduct, the more the employer has to do. If the corrective action does not stop the harassment, you must let the employer know. If the new corrective action does not stop the harassment, you must let the employer know. If it takes 45 internal complaints to nail down the employer’s refusal to take meaningful corrective action, you will have the greatest possible chance of a good outcome if you make those 45 internal complaints.
Always give a fair opportunity for the corrective action to work. Unless there is a problem with your physical safety, do not quit just because the employer does not fire the harasser.
- Many harassment victims assume they will be able to claim constructive discharge, but the courts usually hold that a reasonable employee would have given the corrective action more of an opportunity to work, or would have made another complaint. “Constructive discharge” is a claim by an employee that the employer had effectively fired the employee by making it impossible to continue working there, so that the employer is responsible for the employee’s decision to leave the job.
- Most constructive discharge claims fail.
- The standard for constructive discharge claims is not a personal, subjective standard of what the employee thinks best.
- The standard is whether a “reasonable person” in this situation would decide there is no alternative to resigning. This is a hard standard to meet, particularly if there are further avenues of complaint.
- If you can leave for a better opportunity and you really want to go, do so. Just do not plan on winning a constructive discharge claim.
An employer does not have to fire a harasser for the first offense unless it is so serious that any reasonable employer would have fired the harasser. The employer is entitled to take steps short of discharge if it is reasonable to think such steps might work, but has to take more drastic action if the earlier remedial steps did not work.
However, many women and other plaintiffs have won their cases by showing that the employer did not take adequate steps to deal with earlier complaints of harassment made by other employees, or to deal with harassment it knew or should have known about.
Create a log, and always document the conduct, your complaints, employer responses, and what happened next.
- Do not document things on company time. Wait for a break, or do it after work.
- Always write down full names and dates and descriptions.
- Use a spiral notebook, so that no one can accuse you later of having inserted pages.
- Be consistent: Always write on one side of the page, or on two sides, but do not switch between approaches.
- Do not put other things in the notebook.
Never assume that the employer “must know.”
Always let other employees know about the conduct and your complaints. The employer will ask about this in your deposition, and will try to persuade a court and jury that a failure to let other employees know means you’re making it up.
Always look for other present or former employees who made earlier complaints about the same type of conduct, because that can help you with your claim.
If the conduct made you feel degraded or physically threatened, always mention this factor in complaints.