Get it in writing and get a lawyer. Fast.
“More people are stepping up and filing these complaints, which are being heavily publicized … so I think it’s giving other people strength to do it themselves,” says Charleston attorney Michael Dill.
Hardly a day has gone by since the accusations against Harvey Weinstein without another high profile sexual harassment case hitting the news. By the numbers though, there’s been a drop in Title VII sexual harassment charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) since 1997 — from nearly 16,000 annually to just over 11,000. One statistic from the EEOC has stayed consistent: in the majority of cases, the agency determines there is “no reasonable cause.”
If that sounds awfully final, you might be surprised.
“In a very small number of cases, the EEOC decides to pursue a lawsuit on behalf of an employee. However, in the majority of cases, the EEOC conducts an investigation and makes a determination not to pursue litigation,” explains Lucy Sanders of Charleston’s Bloodgood & Sanders Attorneys at Law. But: “If the EEOC issues a no cause determination, the determination is issued simultaneously with a Notice of Right to Sue letter which allows an employee to file a formal lawsuit in court.” So an employee can still pursue legal action — there’s a difference between filing a lawsuit and asking the EEOC — or its local counterpart, the South Carolina Human Affairs Commission (SHAC) — to investigate a charge.
You do have to jump through the hoops, however, which hints at one reason why many of these public accusations are coming to light for the first time. The hoops can be labyrinthine at best, even for attorneys.
First, understand what’s considered harassment by the courts and government.
Sexual harassment is recognized by federal law as either “quid pro quo” pressure — in which a supervisor grants or denies employment benefits based on an employee’s submission to or rejection of unwelcome sexual conduct — or a hostile work environment. In the latter case, unwelcome sexual conduct interferes with an employee’s ability to work.
“Quid pro quo harassment generally qualifies as a hostile work environment,” Sanders points out. “The more important issue is whether the harasser is the employee’s co-worker or supervisor and, if a supervisor, whether the harassment culminates in an adverse employment action such as a demotion, change in pay, or termination. These distinctions are important because they control which standard a court will use to determine whether the employer is liable, or responsible, for the actions of its employee.”
Second, get clear on who you’re filing against.
“It’s important to understand that filing a sexual harassment lawsuit against your employer is not the same as filing a lawsuit (civil or criminal) against the person who harassed you,” explains Sanders. “In an employment case, you are alleging that your employer should be held responsible for harassing behavior performed by one of its employees. Employers aren’t automatically responsible simply because the harassment took place on their property and was performed by one of their employees.”
Third, the numbers. An employee in South Carolina cannot bring a “sexual harassment” claim against an employer with less than 15 employees. If that checks, an employee has 300 days from the date the unlawful action took place to lodge a timely complaint with SHAC or the EEOC, the agencies charged with preventing, investigating, and responding to employment discrimination and harassment based on protected characteristics such as race, age, religion, sex, national origin, and disability. If the EEOC makes a finding of ‘no reasonable cause,’ an employee has 90 days from the delivery of that ruling to file a legal case in Federal Court. One cannot file a case in court without first filing a charge with the EEOC. And in some cases, a charge will be denied if the employer wasn’t first notified.
“The laws preventing sexual harassment in the workplace not only include fairly short filing deadlines, they also include complicated lists of evidentiary factors, exceptions to rules, and burden shifting,” Sanders wrote via email in a lengthy explanation of dates, deadlines, and technicalities.
“I would absolutely advise getting a lawyer,” says Dill, who recommends documenting everything for evidence and finding another job ASAP.
“When someone files a sexual harassment lawsuit against an employer, boss, or supervisor, the burden of proving those allegations falls on the accuser,” says Dill. “Many times, accusations of sexual harassment cannot be proven simply because there is a lack of evidence. Take good notes. Screenshot, take pictures, write it down, document it, and keep it in a safe place. The more [evidence] you have the better.”
In a perfect world, if you’ve gathered all your evidence, filed all the right forms with all the right departments and agencies within the right time period — the law will keep you safe.
“Filing protects you from retaliation by your employer,” says Dill, but he’s quick to add a caveat: “although many times your employer will still retaliate by terminating your employment, which will only strengthen your case.”
“In my experience, most employers do not retaliate against employees for filing charges (or lawsuits), but, unfortunately, some do,” wrote Sanders. “However, even once you’ve filed a charge, you are not protected from demotion or termination based on actions unrelated to the charge (tardiness, absences, etc).”
If an employer does retaliate and terminate an employee for filing, that will only strengthen the case against them, Dill points out. His advice is to get yourself out first.
“At this point in the process you’ve been harassed and are now accusing someone at your work of that harassment. Therefore, your work life will become very stressful,” Dill says, putting it mildly.
If the logistics of bringing sexual harassment charges seems overwhelming, that’s to say nothing of the mental and emotional aspects.
“There are a number of technicalities that can result in a Court finding that an employer should not be held responsible for sexual harassment in the workplace,” says Sanders, “but these burdens shouldn’t discourage employees from reporting harassment and asking employers to address the problem and prevent further harassment.” —Enid Spitz