By VALERIYA SAFRONOVA
November 10, 2017
In the weeks since The New York Times published allegations of sexual harassment against Harvey Weinstein, thousands of people have come forth about their experiences. Many people have instigated legal action or helped begin investigations at their workplaces.
There are many options for people who feel they have been sexually harassed. There is, however, absolutely no substitute for legal advice that is specific to your situation. Here are some important things to think about.
What is workplace sexual harassment?
Sexual harassment in the workplace is an umbrella term that encompasses a range of unwanted behaviors. This includes nonphysical harassment, including suggestive remarks and gestures, or requests for sexual favors. Physical harassment includes touches, hugs, kisses and coerced sex acts.
It can be perpetrated by anyone — a manager, a colleague, a client. The perpetrator or the recipient may be male or female. It does not need to occur inside the office. Your employer could still be responsible for investigating the incident and handling it appropriately.
“Let’s say you’re out with your boss and you’re having drinks after hours,” said Andrea Gosfield, a senior associate at Griesing Law, who counsels individuals and institutions on employment compliance. “Maybe you think you invited that kiss. Maybe you think you can’t file a report or a claim because you were complicit somehow by being off site. That is not the case. It could be anywhere.”
Start with understanding the outcome you want.
Is your ultimate goal for the harasser to be removed from the company? Do you want to prevent others from being harassed by that person? Are you seeking monetary compensation?
“The first priority is for the individual to decide what it is that she really wants and the price she is willing to pay for that,” said Deborah L. Rhode, a professor of law at Stanford Law School and the director of its Center on the Legal Profession.
“Many people want the harassment to stop so they can do their job and advance in their companies,” said Suzanne B. Goldberg, a professor at Columbia Law School and the director of the Center for Gender and Sexuality Law at Columbia Law School. “Others, especially where the harassment has been severe, seek compensation from the employer for their lost earnings and emotional distress that resulted from the harassment.”
If you have experienced or witnessed sexual harassment and you want to take action, you have a number of choices.
Whatever you plan to do, keep notes and evidence.
“One of the most important things to do after an incident is to write down what happened, what was said or touched, who did it, whether anyone was around to witness what happened, where you were, what the time was,” Ms. Goldberg said.
Ms. Gosfield noted that it is helpful to keep notes in a bound notebook (“technology fails,” she said) and to make sure nothing is stored on work devices. Otherwise, “should anything go awry, your employer will have access to the logs you were keeping,” Ms. Gosfield said.
If there is any physical evidence — for example, a dress with fluids on it or pornographic images — save it.
When investigating or reporting on a complaint of sexual harassment, accusers will often be asked if they had confided in a friend, family member or colleague at the time of the event or events. Even if you never plan on taking action, confiding in someone at the time can be helpful if you change your mind about taking action later.
Now, for your options:
You can make a criminal complaint.
If you were sexually assaulted, going straight to the police is a good idea.
“Every state is going to have its own definition of rape,” Ms. Gosfield said. Even the terms states use can be different. “One state may call rape ‘sexual assault.’ Another state may call it rape. When you’ve been victimized, sodomy is a crime in certain jurisdictions.”
Generally, in cases where the harassment included physical touching, coerced physical confinement or coerced sex acts, it could be considered a crime. If you want to start a criminal investigation, it’s important to know that there is a legal timeline.
“If you have been victimized and violated, probably one of the last things you want to do is go to a precinct and relive every detail,” Ms. Gosfield said. Nonetheless, it is important for law enforcement to have access to physical evidence — if there is any — as soon as possible.
You can file a complaint through your employer.
If you are an employee, you can follow your employer’s procedure for filing a complaint. Typically this is the first step you should take, unless there is only one point person to report to and that person was the harasser.
If that situation doesn’t apply, and if you think you may want to file a lawsuit against the employer in the future, you have to report the harassment to your employer first. Otherwise, the employer has a defense, according to a judgment by the Supreme Court. Make sure all of your attempts at reporting the abuse are documented. “Write down everything and put everything in writing,” said Minna Kotkin, a professor of law at Brooklyn Law School and the director of the Brooklyn Law School Employment Law Clinic. “You don’t just go and talk to H.R.”
“Employers are given a lot of latitude to draft their policies,” Ms. Gosfield said. “No one says employers must have a policy that requires you to do X, Y and Z and have this reporting structure.”
Check your handbook or your internal company website. Hone in on it. Understand the chain of reporting that you should follow. Remember that employers may never have acted on their policies before and you may need to be diligent in pursuing your complaint. And company policy is not always up to date with the courts.
You can go to a federal, state or local agency.
If you do not want to, or cannot file through your employer, or if you are unsatisfied with the results of your employer’s investigation, you can enter a complaint at the federal, state or local level. (You can also do this together with reporting the incident to your employer.)
At the federal level, you can go through the Equal Employment Opportunity Commission. Title VII of the 1964 federal Civil Rights Act prohibits sexual harassment.
You can also head to a Fair Employment Practices Agency. Here is a list. These are state or local administrative bodies that specialize in human or civil rights. Often if you file with a state or local agency, it will automatically co-file the claim with the E.E.O.C.
If one of the agencies finds that your complaint is warranted, it will issue a “right to sue” letter that allows you to bring the case to court. You need this letter in order to file a lawsuit.
With many state or local agencies, you can generally file a complaint without the help of a lawyer. “But often the processes are not quick, where a lawyer can typically intervene more quickly with an employer than a government agency,” Ms. Goldberg said.
Make sure you’re aware of statutes of limitations.
Under Title VII, you have to file a claim with the E.E.O.C. within 180 days of the harassment. However, if your state has similar laws protecting workers from sexual harassment, you can file the complaint with both the state and federal agencies, which will extend the statute of limitations to 300 days.
And remember, Ms. Rhode said, “the statute of limitations doesn’t operate in the world of public opinion.” Even if years have passed since you were harassed and it is too late to file claims, you can speak about the incident publicly at any time.
You can make accusations in public.
You can share your experience publicly through social media platforms or with the help of a reporter.
What to expect if you go public with your story.
“One thing we know from social psychology studies is that people don’t like complainers,” said Joanna Grossman, the Ellen K. Solender Endowed Chair in Women and the Law at Southern Methodist University’s Dedman School of Law. “If you’re going public and on social media, you always run the risk that you get labeled a complainer, a problem, a liar.” But, she added, “that doesn’t mean it’s not worth it. There may be benefits in connecting with other victims, pursuing justice and knowing the accuser won’t hurt someone else.”
You can expect threats, intimidation and investigation if you make public allegations.
There can be strength in numbers.
If an employer is ineffective at pursuing complaints, you and other people who have experienced sexual harassment can “work together to protect each other or at least warn each other,” Ms. Grossman said.
“A lot of companies will tell you that you can’t disparage the company or its employees,” Ms. Grossman said. “That’s illegal. You can discuss any term or condition of employment, including complaining about sexual harassment by a co-worker. You can do it. There’s such a strong norm of not talking about your pay or your boss that it’s a social hurdle that prevents us from activating some of those more community-oriented approaches.”
Ms. Rhode said: “One of the triggering mechanisms in some of these cases has been the subculture of rumor and gossip that came to surround people who were serial harassers. When word gets around, you can be sure you’re not the only person who has experienced it. And then it takes one brave person to go public and others will follow.”
Should you confront the harasser?
“You can say, ‘I do not want you to do this. It is offensive. Stop it immediately. I’m going to report you,’” Ms. Gosfield said. People who are being threatened or intimidated have to choose at that time between de-escalation, distraction or confrontation. No matter what you say at the time to remove yourself from the situation, confrontation can take place later, in safety, or with help.
What if you’re a freelancer?
No matter your work situation, you always have the right to create a criminal complaint or to bring a lawsuit against the perpetrator. Other rights will vary state by state. “As a freelancer, in lots of situations, you’re just not going to have any rights,” Ms. Grossman said. “You’re relying on the good intentions of whoever hired you.”
Make sure you are definitely an independent contractor according to the law before you assume you are. “If you’re called an independent contractor but you’re sitting in a company’s offices and using their computers, you’re not and you can bring an action,” Ms. Kotkin said. She suggests checking guidelines from the Labor Department to understand your status.
“If you went through a hiring agency, alert the hiring agency about what has happened and seek assistance there,” Ms. Goldberg said. “If you’re freelancing for a company, an important first step is to alert the company about what has happened. Even if the company is not legally responsible, it may be able to take steps to help address the situation.”
But keep in mind the risks. “You have to understand you’re accepting the risk that you will lose the contract,” Ms. Grossman said. “Maybe that won’t happen and I hope it doesn’t. But there’s just not as much of a deterrent for that company since they’re not bound by nondiscrimination laws.”
It can sometimes be useful to have an upfront conversation with a hiring agency or a temporary employer about what practices are in place to address sexual harassment. Ask them, Ms. Goldberg said: “What is your policy for addressing sexual harassment that happens at a job placement? Where do I go if I am harassed at a job placement? Who is responsible? What steps will you take?”
What’s the deal with nondisclosure agreements, or N.D.A.s?
“An N.D.A. is where both parties agree that they’re not going to discuss the terms of the agreement or the allegations,” Ms. Gosfield said. Often the agreement is part of a broader settlement that offers the accuser monetary compensation.
“That makes the culture of silence so much more pervasive,” Ms. Gosfield said. “This never hits a court where there could be an opinion issued where everyone can understand that this is inappropriate, and what is the sanction, and what is going to be the consequence.”
What can happen if you violate an N.D.A.? You could be sued by the other party. “But I think the real reason people don’t violate N.D.A.s is that they’re not lump sum payments,” Ms. Rhode said. “They’re paid over a series of years and if you renege on the agreement, the payments stop.”
What to know about lawyers.
“Many plaintiff counsels who are focused on victims of discrimination will work on contingency,” Ms. Gosfield said. Meaning, “The lawyer accepts a fixed percentage. If the client gets nothing, the lawyer gets nothing.”
Some lawyers charge for consultations and some do not. But they are “under ethical duty to tell you if you have a pursuable claim under state or federal law,” Ms. Gosfield said. Ask up front how the lawyer would be paid and if they would ask for payment for an initial conversation.
If you’re unsure of where to begin your search for a lawyer, try reaching out to your state bar association, which can make a recommendation.