First, Report It
The first thing to do – and the most important step – is to report the harassment to HR and appropriate members of management. The complaint should be in writing because that creates a paper trail for what exactly was said, to whom, and when. An oral complaint is sufficient to put the employer on notice, but it is strongly recommended that employees always file written complaints.
Why is Reporting So Important?
In general, an employer is not liable for harassment, unless management is aware of the harassment and fails to take prompt action to stop the harassing behavior. Once management is notified of harassment or discrimination, they have a duty to “promptly” investigate and take appropriate action. If the employer has a sexual harassment policy, it is important to follow the steps outlined in that policy.
But, I Don’t Want Anybody to Know
Management needs to take reasonable efforts to ensure confidentiality. It is, however, sometimes not possible to ensure confidentiality during an investigation.
What if They Don’t Fire the Harasser?
The employer’s legal obligation is to ensure that the harassment stops. Employers are not necessarily required to terminate the harasser in every case. They may change reporting relationships, job assignments, or working hours. The employer has some flexibility. Their legal responsibility is simply to ensure that the harassment does not continue.
I Filed a Complaint, and I Don’t Know What Happened.
The employer should advise the victim (in general terms) what actions it has taken and make sure the employee feels comfortable in the workplace. At a minimum, discussion regarding the investigative steps should be provided. They may request that the employee not discuss the investigation with anyone other than HR or management representatives. Some employers do not provide any information to the victim. Frequently, this leaves the victim feeling that the employer did not take their complaints seriously.
The employer’s failure to provide the employee with any information about what action it has taken may expose the employer to liability for failing to take promptly address the employee’s concerns. There is a difference between providing some information to the employee, but perhaps not all of the information that the employee wants.
What if I’m Retaliated Against?
It is unlawful for an employer to retaliate against any employee who provides information related to a claim of harassment or discrimination. Retaliation could include demotion, reduction in pay, less favorable working conditions, less opportunity for advancement negative review, or written warning. Management should ensure the employee that they will not be retaliated against for having reported harassment. If retaliatory action is taken, an employee may have a claim against the employer for unlawful retaliation.
The Workplace Feels Hostile
If management is made aware of harassment and fails to take prompt remedial action, the employee may have what is referred to as a hostile work environment claim. In evaluating whether an employee can prevail on such a claim, courts look at both the severity and frequency of the harassment. In some rare cases, one extreme incident of harassment can be enough to create a hostile work environment. However, in most cases, the harassment must be fairly frequent. The focus is on how many times was the employee harassed after reporting the harassment to management.
Because employers (in many cases) are only liable for harassment they know about and fail to address, it is important for the employee to continue to report each incident of harassment as it occurs.
What Happens If I Quit?
The employee may be justified in constructively discharging their employment. A “constructive discharge” is a legal term that allows an employee to quit and sue for wrongful termination. Normally, an employee can only sue for wrongful termination when they have been terminated.
The standard that courts evaluate in deciding whether an employee was justified in quitting is whether a reasonable employee in their position would feel compelled to resign because of the hostile working conditions. In cases where a female is being harassed by a male, courts will ask whether a reasonable female employee in that position would feel compelled to resign.
My Employer Has Less than 15 Employees. Isn’t That a Problem?
Title VII of the Civil Rights Act of 1964 prohibits, among other things, sex harassment and discrimination. It, however, only applies to employers who have 15 or more employees.
Fortunately, the prohibition against sex harassment in the Arizona Civil Rights Act (“ACRA”) applies to all Arizona employers, regardless of how many employees they have. That means any Arizona employee has a legal remedy if they are being sexually harassed.
Times Up Defense Fund
The Times Up Defense Fund helps victims of sexual harassment and discrimination by offering to pay for a portion of the employee’s legal fees. There is an application process to access the Fund. It is important to talk to an experienced employment law attorney if you have been sexually harassed in the workplace to discuss the process for seeking funding through this organization.