I am an employment attorney here to tell you how to respond to sexual harassment in the workplace in the "#MeToo" era. Ask Me Anything!
I am Tom Spiggle, an employment attorney and former federal prosecutor. I founded the Spiggle Law Firm to help fight against discrimination and workplace harassment. I think how these very issues are being handled in the workforce, especially at big tech companies like Google, is counterproductive and harmful to employees. I want to help workers, of any gender, find out how to best deal with harassment, of themselves or others, and how to think about their own behavior. Here is my proof , my website , a CNN Article on my topic, and my blog page
So sorry that this happened. Next time report and then, ideally, get lawyer. This is sadly common. It should not matter that they did not have sound. Very well could constitute illegal hostile work environment.
Can we expect any more insight in this AMA other than "get a lawyer"?
You don't have to get lawyer. But you should report regardless. It often gives the employee anti-retaliation under federal and state law. Make it more difficult, though not impossible, for the employer to fire you for making the report. However, the truth is that, in many situations, thing get worse after you report. Doesn't require you have lawyer, but it helps.
So if the situation many times gets worse after you report, and the only benefit you really explained is anti-retaliation, sounds like reporting isn't a good route?
It is certainly a judgment call. But it is regrettable when we see people in our office who didn't report because they were scared of retaliation, and then they get fired or feel like they have to quit without taking this simple step to give them maximum legal protection. Still, it is true that reporting will make things worse in the short term. It's a tough spot to be in, no doubt.
I have lawyer services provided as part of benefits with my company. As a contractor, this is through a different company than the one I work with. Will these lawyers do or should it be a lawyer that is completely impartial to my employment?
Good question. My company also provides me access to lawyers for a small monthly fee as part of my benefits package. I'm also interested to know if there is any chance I could trust these lawyers to represent me if my interests opposed my company's interests.
HR guy here. My company offers this as a benefit. At my company they're expressly restricted from representing people in matters that involve the employee's employment. They're only able to offer legal advice in that area.
This is my understanding, too. Company won't pay you to sue them. I suppose if you use Legal Shield or another service not provided your company, those lawyers can provide advice. But they generally are not going to be able to represent you in the way that you might need in these situations.
Company I use to work for had a service to help find lawyers. I called them up since my wife was encountering a hostile work environment at her work place. They informed me that the primary reason the service existed was to help employees with stuff like adoption, not litigation.
So, even though the issue had nothing to do with my company, that would not be able to help me find a lawyer for my wife.
Probably the best place to look is www.nela.org, www.avvo.com or www.nolo.come. The National Employment Lawyer's Association (NELA) has a great attorney locator function that is free to use.
What's the best course of action for what I'm sure is a majority who cannot afford a lawyer / find one? Not looking for one anymore as this event transpired some time ago, but any information that can help anyone else is great too.
I wouldn't be sure that you can't afford a lawyer. Even if you can't afford to have one represent you, getting an hour consult can be enough to point you in the right direction with some self-help measures. A good place to seek legal advice/information for low cost is www.avvo.com If you have to go solo, usually the best course of action is to report to HR what you believe is going on. It won't always result in an outcome you want, but it could help slow things down to give you some time to maneuver.
What is the best evidence one can gather of the sexual harassment?
Your testimony alone is good evidence. There is a misconception that you need a smoking gun to win. But that evidence rarely exists. With a skilled lawyer, testimony of the victim alone can be sufficient. That said, more evidence is better than less. Emails are helpful, even if not direct evidence. In many states, it is lawful for you to record conversations at work. So, turn your phone recorder on and let it run. One of the best harassment cases I had was one in which the victim put a recorder in her pocket and let it run all day while at work. Got harasser dead to rights. Even a contemporaneous diary can be helpful of the James Comey variety. It would be considered hearsay in court, but can be used to rebut claims of fabrication, a defense which is often used in these cases by employers.
Here's what I never got about one party consent. If I'm talking to someone and record it, am I the one party that consented? While if I go to a Cafe and put a recorder under a table and record 2 people talking. That would be illegal as noone consented. Correct?
You are correct
I'm curious about this too. Is writing conversations down in a notebook with a dates/times enough evidence?
Yes, it can be. See above
Your website starts off with a calculator to show how much money the claimant will get if they file a case. Do you find that leads to a mistaken impression that women are trying to cash in on the #metoo movement?
Not at all. I developed the calculator because we often get the question "What is my case worth?" The calculator gives people a structured way to think about that question. We give a lot of information to folks using the calculator to see what legal principles underly how it works. And I developed the calculator well before the MeToo movement.
I would love to report, but what would happen is I'd be removed from the project and put on another that is further from home, doesn't have the same telework options, etc. I struggle to see how that could be avoided but it's not technically retribution... Is there any way to avoid something like that? Or do I just suck it up?
If you report and that happens, it could be considered illegal retaliation if you are moved to a less desirable work location. If you report and company tries to remove you, you'd want to raise the fact that you are the one being punished. Could get them to back off. Yes, they should move the wrongdoer before they move you
...from my decades experience in the workforce...the person lower down the chain gets moved...or worse. Not all of us can afford employment attorneys.
That's often correct. Depending on the situation, you could file a charge with the EEOC. www.eeoc.gov. You don't need an attorney fore that and it can provide some protection
Call the labor board
Does my local labor board have the pull over the giant corporation I work for?
Not likely. Department of Labor is very unlikely to be of any help. Even the EEOC is not likely to be much help, and depending on the claim, may not even have jurisdiction. However, filing a charge with the EEOC - or a similar local state agency - can provide some protection under anti-retaliation law like Title VII of the Civil Rights Act of 1964. Check out EEOC.gov. It will also list local state agency that you can report to.
But is it ok for an employer to immediately penalize an employee based purely on an accusation? What happened to the presumption of innocence?
No such thing in the private sector. I think employers are generally not looking to fire valuable employees unnecessarily. Folks on HR sites are talking about how to do fair investigations. But you are not not entitled to one by law in private sector employment.
Wow it's almost like they could do an investigation to see if it's credible in a fairly short amount of time and then make a decision based on the level of liability they are willing to adopt.
Most employers will try to do an investigation, but the quality of investigation varies widely. HR professionals often lack training on how to conduct these investigations.
Can I do anything if my company refuses to move my harasser, but wants to move me to a less desirable location? I already got a lawyer, who dropped the case because my HR did something which could be considered a measured response (they talked to the guy, he said he'd stay away from me - but that didn't stop him last time). I feel trapped, and have no idea what to do.
You should probably try finding another lawyer. The company is not necessarily required to move the harasser. Moving you to a less desirable location should not be an option. With or without a lawyer, you should look into filing a charge with the EEOC. In many states, you can do this online. Check out www.eeoc.gov
From personal (not me but close friends) experience, #metoo has started to turn the tides on this kind of things as well. I've seen people (C-level executives) getting fired in a matter of days after a few lower-level employees had reported them. HR these days knows that it's easier and easier for the victims to reach out to media, and that the resulting shit storm would be several orders of magnitude worse. They want to avoid the bad publicity more than anything. I'm not saying it always works, but there is definite progress in that direction.
That is correct. Companies are often more worried about negative PR than about potential legal claims. But it has to be pretty bad to get media attention.
So, I'm not sure if I'm too late to the game to ask some questions... I'm a female pilot, and because of our lack of numbers in the field, I am always flying with men, which normally is great and as weird as it sounds I don't really notice my difference in gender.
The trips we do are normally 2 to 4 days, so obviously there's overnights, it's not abnormal to go out with your crew on these overnights (if they're long enough) to have food and maybe a couple drinks. Since the flight attendants usually stay at different hotels this means that if I ever want to be social, it will just be with my captain, this is normally friendly and completely appropriate.
And then there was a trip earlier this month. I was flying with a guy at least 20 years my senior, he has been at the company since before I hit high school. Trip is completely normal, he seems cool, we talk about our respective spouses (we're both married), hobbies, etc. laughs are had, whatever. Then we have a longer overnight, we decide to get tacos and beer. After a couple beers he starts saying some complimentary stuff that now thinking back may have been a red flag. Then when we get back to the hotel (our rooms are right next to each other, awesome) he keeps asking me to come over. I say no, close my door, start to get ready for bed. This is where I get uncomfortable... he starts texting me to come over, then he comes and knocks on my door to come over. I insist that I'm staying put and to leave me alone.
So, I'm trying to keep this shorter but it's hard because we have such a weird work place. Long story short I was supposed to fly the rest of the month with this guy. I know that our union will do nothing because it's a bit of an ol boys club and they're much more likely to protect the more senior pilot, especially since, 'nothing really went wrong' and more than likely it'll just get rumor milled until everyone knows I'm an uptight asshole. And talking directly to the company would immediately make me nearly a union "scab". But I was uncomfortable flying with him, so I dropped the rest of the month, unpaid (which is a totally normal thing we can do).
My question is, what can I do in the future? I mean, short of never socializing on overnights I'm not really sure what I can do... ask him to drop the trips instead because he made me uncomfortable? Basically I'm asking what you may have to offer for advice in a situation like this, if it happens again.
I'd report that to the airline HR. That is pretty serious conduct and could get the company in hot water. If I'm the company lawyer, I'm putting a stop to this real quick. But you are correct that the union may be of little help. I'm a big fan of unions in the aggregate, but for issues like this, they are often of little help. Good luck!
I am a male in the healthcare industry - long term care, specifically - and face pretty intense sexual harassment every time I step foot in a building.
I am contracted through a company, to provide clinical oversight and management of the residents, so I don’t actually work for the same company as the staff in the long term care facilities.
Typically I spend one day a week in each of the buildings I am responsible for managing (4 total).
There is one building I go to every Thursday, where the Director of Nursing - the boss of everyone in the building aside from myself, the therapists, and the home administrator - continuously harasses me for the entirety of my day in the building.
She has flashed me her breasts, bent over and spanked herself in front of me, closed office doors and said “I won’t tell anyone”, told me to drop my pants for a blow job... etc. pretty much every lewd thing you can think of, she’s asked for it from me.
There are a plethora of witnesses, and she has even said to me - once you get promoted, you’re gonna serve me some papers, huh?
I’ve recently been promoted, and one of my first actions was to place a female into that position.
So this is the first week in almost a year and a half I will not be forced to endure some kind of harassment.
Do I have any kind of case?
Thank you, in advance.
Yes, that scenario suggests a pretty strong case for hostile work environment, but to have a case against your employer, you have to show that management was aware of the situation.
What are the most common misconceptions you see when people are speaking about sexual harassment?
There is often misunderstanding about quid pro quo sexual harassment ("I'll do this for you if you do this for me") and hostile work environment. They require different standards of proof. For HWE specifically, where the line is between boorish behavior and illegal harassment. This is understandable as courts themselves are not clear about what constitutes actionable sexual harassment. Another big misconception is that, in order to have a case, you need smoking-gun evidence like an email or a voice recording. Certainly that evidence is fantastic, but it's not required to win. If you testify as to something that happened behind close doors and a court believes you and not the other person, you win. Thanks for a great question!
What are the likely ramifications of reporting sexual harassment? Being fired, passed over for promotion, laid off, blacklisted, etc? How easy is it to prove any action is a result of your reporting the behavior?
All of those are, unfortunately, common results. But they often will happen even without reporting, so you might as well in many instances. As long as you raise discrimination or harassment based on sex you will likely receive protection under anti-retaliation provisions of discrimination law. You need not file with EEOC to get this protection - though filing certainly helps. All you need to do say that you believe you are being discriminated against on the basis of sex. You need not even mention any particular law. Submitting it in writing to HR or your supervisor, email is fine, is the best way to do this.
How is the best way to handle off-side sexual comments from coworkers? The ones that may seem innocent enough, and you generally laugh it off, though it makes you uncomfortable. And so they deem it ok to continue?
Great question. This gets into the area of hostile work environment. For it to be illegal, it must be severe or pervasive. Comments like this are not sufficiently severe to constitute actionable HWE, but if they occur enough, especially if you asked them to stop, it could be considered sufficiently pervasive to be illegal. But largely agree with the comment below. You should report it to HR or your supervisor in writing.
I work with patients in a hospital setting, and often I face harassment from them while I am examining them or assessing them. I'm curious on how harassment in a healthcare setting works-- have you ever dealt with patient-provider harassment cases where the patient is the one doing the harassing? If so, what did you do?
Your employer - the hospital - has a duty to protect you. It can't simply respond, "Sorry, not us. Good luck." We've handled case in which employees have been harassed by customers. If the employee is still at work, we have contacted HR, or outside counsel, to get the employer to take action. If the employee has been fired, or quit, then can be wrongful termination/constructive discharge. Make sure the alert HR about this if you have not already
Agreed. I am a charge nurse and make patient-nurse assignments, and when we have patients that are inappropriate it seems all we can do is change the nurse. It doesn't stop the patient from repeating the behavior with others. Anything we can do?
I'd escalate it to HR. This is a problem that could result in liability to the hospital. That might get you traction for that reason alone. That said, we found hospitals, as a group, to be very reluctant to do the right thing regarding employees, especially nurses.
In September a guest at the restaurant I worked at sexually assaulted me. I told 2 managers and neither one did anything about it. I asked my general manager to drop that table's food off for me so I did not have to lean over the man that assaulted me. He refused and forced me to do it. I ended up having a panic attack and dropped a plate. I was immediately sent home and 2 days later the GM fired me over the phone while laughing at me, stating it was for, "behavior unbecoming of a server." He fired me for having a panic attack after being sexually assaulted.
I fought the firing and kept notes through the whole process. The District Manager hired me back, but none of the things we agreed on ever happened. (I asked for back pay for the days I was fired, an apology from the GM for laughing at me while firing me, and to be immediately put back on the schedule.) After returning it was an extremely hostile environment. My hours were cut and I was treated horribly my him and my coworkers. I got extremely depressed and anxious until I found another job and quit. I want to sue the company for the way everything was handled, as I feel very discriminated against and am still extremely depressed. What is your opinion on this and what should I do?
Thank you for taking the time to do this AMA, we really need more people like you.
So sorry that you had to deal with this. We see this type of behavior a lot in the restaurant industry. You have a couple of choices. One is, yes, to get a lawyer. For what you describe, you might well find one who will take this on contingency so that you do not have to pay unless there is recover. Try www.nela.org or avvo.com to find a lawyer. Alternatively, you can file a charge yourself at www.eeoc.gov. You don't need a lawyer to do this. Their intake folks can help you. Depending on your state, you have 180 or 300 days after the date that you quit to file a charge. Because you quit you'll want to argue constructive discharge, i.e., that you were forced to quit. Wishing you all the best.
How do I respond to sexual harassment in the workplace in the "#MeToo" era?
What is your situation?
I think he is looking for a general guideline for what you mentioned in your title. Where should one start if being accused of something, what to say/not to say, how to handle it, etc.
If you are accused of harassment, and you are not in a government job, the best thing you can to is get a lawyer. (I know, I know.) While there are little in the way of procedural protections - e.g., in the way you do in a criminal prosecution - it could help to prevent the employer from firing you on the spot. It could be possible that that the company is liable if it is firing only men, for instance. Those would be actions based on a "protected category," in this case, sex
And if you do have a state/federal job?
It's much less likely in one of these jobs to get fired for a single report of harassment because you have some due process rights. This means you could not be disciplined unless there was real evidence of harassment.
In cases of false accusation (with actual evidence of the attempted lie, not just a lack of proof against the accused), have you ever been involved in cases where the accused sues for damages caused by the accusation? In your experience, how does that tend to work out? Is it seen as bullying an accuser?
You can certainly bring a defamation action against the accuser if he or she intentionally lied. Perspective Interference of Business Advantage - essentially "this got me fired" - is another claim. I have brought claims like this, but never in a case of a false report of sex harassment.
Thanks to everyone who participated. If you want more information about this topic, we have a section on our website about workplace investigations. https://www.spigglelaw.com/employment-blog/surviving-workplace-investigations/ A lot of info on our blog, too. Other good resources are the National Employment Lawyers Association (www.nela.org). In the DMV area, you can go to www.mwela.org. Another good site to ask questions of lawyers about this and other topics is www.avvo.com. Wishing everyone the best
I am a male who has been sexually harassed by a manager in the past, the incident was on video and I reported him, however it was not taken seriously, they claimed the video didn't have audio so even though they saw SOMETHING they could not validate what I reported, they then told me I could not transfer to another store and he would be returning to work, I quit because of this(I refused to work with him again)
if I ever find myself in a situation like this again, what are the correct steps to take?
I'd like to thank those of you who were helpful and supportive, and those of you who decided to be edgy, thanks for trying
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