{Read in 6 minutes} Recently I posted an article reminding employees that they must file a harassment complaint within 180-300 days after the latest occurrence. While working on that blog, the question came up about what an employee should do if they are the victim of harassment.
Report the Behavior
First and foremost, report the questionable behavior to someone in your Human Resources (HR) department. The company is not expected to have eyes and ears everywhere; internally, most of them require their employees to report incidents, and the law also requires employees to report incidents themselves.
Document the Incident(s)
Employees are not required to keep track of every instance of harassment, however any good lawyer will advise their client that, if the harassment is recurring, the employee should keep a diary or other kind of record of the incidents. Most harassers do not do things in front of an audience, so in order to preserve all of the facts, it is vital that the employee documents it, even if in just a self-addressed email, making note of:
- what occurred;
- what day it occurred;
- where you were;
- what you were wearing;
- who was present, if anyone;
- what the harasser was wearing — and any other details.
The more specifics you can capture about the incident, the stronger your argument will be. Defendants often don’t seem credible when a plaintiff’s contemporaneous log describes the harassment in detail.
Use Appropriate Terminology
Often when employees are being harassed, especially sexually, they will report it, but don’t use appropriate terminology.
“Well, the person doesn’t like me and I think it’s a personality issue. We’re not getting along with each other.“
Typically HR people will listen without taking notes. This is calculated so that later their recollection can be conveniently vague.
“You didn’t say sexual harassment. You said personality conflict.”
Using the wrong terminology leaves you in a gray area. Sexual harassment and personality conflicts are two entirely different terms, one of which hurts your case dramatically while the other one helps.
At the same time you don’t have to say, “This is sexual harassment under Title 7. There was a statute enacted in 1964….” You just have to present facts so that HR can easily infer some kind of discrimination or harassment is taking place: “Listen, he makes comments to me about my body and I don’t find it appropriate,” is enough for any reasonable person to understand that it is sexual harassment.
When filing complaints, what you say and how it is worded is very, very important. The sooner you speak to a lawyer the better, as the lawyer can assist you in making sure you document things properly and then guide you through the process.
Make Your Complaint in Writing
When making complaints to HR, we recommend you do it in writing. Use their email system and follow up by meeting with them. When the meeting is over, send the HR person a thank you note for taking the time to talk to you. Express the hope that they will look into the sexual harassment claim or repeat what was said during that meeting.
Continuous Violation
As an employee, if you have a boss that calls you names or treats you horribly — making comments on your appearance or your attire or sexual comments to you — you are being sexually harassed. If you are concerned because the incidents have occurred sporadically over a period of time, there’s a legal argument we can make called a continuous violation.
An employee is not required to lodge a complaint after every individual incident if things are happening repeatedly and they are similar in severity or pervasiveness. If your boss calls you a name this month and has been calling you those names for six months, or even a year, the statute is going to characterize this as a continuous violation. You can proceed on your claim for not just the last incident, but all the preceding ones because the circumstances were similar and continued throughout your employment. That applies to most harassment claims whether sexual or racial.
This also applies if the harassment is because of a disability. We see a lot of complaints where people make comments within the workplace about someone’s handicap over and over again, until the victim finally reaches the tipping point and files a complaint. In cases like these, the law is going to allow us to go back to the beginning of when those comments started being made because they happened with some measured frequency throughout your employment.
If you are facing harassment — of a sexual, racial, or ableist nature — there is much you can do on your own. The log of incidents of harassment and the visits to HR are all things you can and should do by yourself — but for the best results, you should have an attorney in your corner while you do them.
James A. Vagnini
Partner
email: [email protected]
