Why Does Abuser Continue to Work and Victim Cannot After Filing Complaint Wih Human Resources

1. How to use this guide
2. Definitions & Examples
3. What are the laws?
4. What are my rights?
5. What can I do?
6. What could happen?
7. Tools & resources

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How to use this guide

Know Your Rights Guide is continued below.

Important note (Updated Aug. 18, 2022): Unfortunately, at this time we are unable to accept new applications for our Free Legal Advice & Counseling program due to current volume.  Please check back here soon for updates on our services.

Content warning: This guide contains information and examples of sexual assault and sexual harassment that may be triggering or overwhelming for you, especially if you are a survivor of sexual violence. Please be aware of your emotional and mental needs while reading. You may want to take breaks, skip over or skim some sections, or ask a trusted loved one to read it for you and take notes.

How to use this guide

The purpose of this Know Your Rights Guide is to help you understand your rights and options if you have experienced sexual harassment or sexual assault at work. This guide is not official legal advice. Laws frequently change and can be interpreted in different ways, so we cannot guarantee that all of the information in this Guide is accurate as it applies to your specific situation.

I knew that if I didn't do it, none of the other girls were going to do it. And I had to make sure that we weren't going to go through that anymore. Jasmine Douville, former ERA client

Read Jasmine's Story

Definitions & Examples

Workplace sexual harassment takes many different forms. It can come from a coworker, a supervisor, or a customer or client, and ranges from unwanted touching, inappropriate comments or jokes, or someone promising you a promotion in exchange for sexual favors.

Sexual harassment does not have to be "sexual." It can also look like teasing, intimidating or offensive comments based on stereotypes (e.g., about how certain people "are" or should act), or bullying someone or a group of people based on their sex, gender identity (man, woman, trans, intersex, nonbinary) or sexual orientation (queer, straight, bisexual, lesbian, gay, asexual, pansexual, two-spirit etc.) Sometimes sexual harassment is about sex and something else, like race or ethnicity. For example, a woman of color may experience harassment in the workplace differently from a white female co-worker. She may be the target of abusive or hostile behavior because of the combination of her sex and her race or ethnicity.

Examples of behavior that could be harassment include but are not limited to:

• making unwanted requests for sexual favors or dates
• making inappropriate comments about someone's body or appearance
• saying bad things about or making fun of someone or all people of a certain gender or sexual orientation (i.e. "women are…" or "gay people all…")
• using gender-based or sexual orientation-based slurs (swear words)
• making vulgar, offensive, or explicit jokes about sex or sexual acts
  • Note: It still counts as harassment even if the conduct is not aimed at you specifically. For example, if you are a trans person who hears a group of co-workers making offensive jokes or insults about trans people (in general), that kind of behavior could still be considered "harassment," even though they aren't speaking to or about you specifically.
• sending or sharing emails, texts, or messages of a sexual nature
• gossiping about someone's personal relationships or sex life
• unwanted or inappropriate touching of any body part, clothing, face, or hair, including hugging, kissing, or assault
• staring, leering, or making gestures of a sexual nature
• blocking someone's movement
• displaying, sending, or sharing vulgar pictures or pornography

For something to be considered sexual harassment, it matters what the person who's being harassed thinks; It does not matter if the person who's doing the harassment thinks it's OK, harmless, not sexual, or welcomed (i.e., they think you like it or don't have a problem with it.) It's still harassment if the behavior is something you do not want or find offensive.

It also still counts as harassment even if, in the moment, you don't immediately say "stop" or something else to let the person know that what they're saying/doing is inappropriate. For example, you might laugh along at a joke that you find offensive, or accept a hug because you're caught unaware in the moment, or because you're worried the person will react badly if you don't go along with their behavior. If the harasser is a supervisor or someone else who has more power than you, you might be afraid speaking up or saying "no" will impact your job. All of these are normal responses to harassment. Responding this way does not make the harassment less serious, or make you more responsible.

What are the laws?

Federal Law

Legally, workplace sexual harassment is considered a form of sex discrimination, so sexual harassment is illegal across the country. Generally, these federal (national) laws apply only to employers with 15 or more employees, but your state might have better laws that cover smaller employers.

1. Sexual harassment is illegal. Title VII of the Civil Rights Act of 1964 ("Title VII") makes it illegal for employers to allow anyone to be sexually harassed at work by anyone else, regardless of sex, gender, or sexual orientation.
   • Sexual harassment can happen to anyone. It is about power, not sexual desire. So for example, men who identify as straight can sexually harass other men – for example, by teasing or bullying those men for being "too feminine" or "acting gay." (For examples of sexual harassment, see the What Is It? section above.)
   • Title VII applies to employers. It is designed to make employers accountable for providing a work environment that is free from harassment and other kinds of discrimination. It does not make it illegal for someone to harass someone else. Instead, it makes it illegal for employers to allow harassment to occur or to fail to stop it once they know it's happening. So this civil rights law does not give you a right to sue an individual person – unless that individual person is your employer.
2. Retaliation is also illegal. It's illegal for someone at work to retaliate against (punish) you for reporting or speaking out against sexual harassment, or for participating in an investigation or legal action related to sexual harassment. Examples of retaliation in the workplace include being fired or demoted, receiving a pay cut or a reduction in your hours or benefits, being assigned a different shift, location, position, receiving new or different duties, or being asked to take time off without pay. Retaliation can also be subtle, build up, or get worse over time. Examples include being iced out by coworkers, no longer being invited to meetings, or being left off of communications you were formerly on.
3. If you report sexual harassment, your employer cannot ignore you or retaliate against you. If a boss or someone in HR knows about the harassment, or should know that you are being harassed, legally, they must take prompt action to try to stop the behavior, investigate the harassment, and make sure it doesn't happen again. The action also has to be "appropriate" and effective, meaning it has to actually make the harassment stop, without harming you or allowing you to become a target of retaliation.
   • If you complained or told your boss, HR, or another manager about sexual harassment, and they failed to do anything to make the situation better (or made it worse), you could consider taking legal action.
   • To speak with a legal advocate about your options for legal action, fill out this form.

California

In addition to the above, California has additional sexual harassment laws that give you even more protection.

1.  In California, the law prohibiting sexual harassment at work (the Fair Employment and Housing Act, or "FEHA") applies to all California employers, not just those with 15 or more employees.
2.  California law protects all workers – including independent contractors, interns, and volunteers – not just people who are officially classified as "employees."
3.  California employers don't just have to respond to sexual harassment; they have to take steps to prevent it from happening in the first place. At minimum, employers must have a written policy on sexual harassment that tells workers where and how to report or complain about it.
4.  California employers with 5 or more employees must provide sexual harassment prevention training to employees and supervisors at least once every 2 years.

It felt very empowering to have an agency to go to that would actually stand by you. Terry Becker, former ERA client

Read Terry's Story

What are my rights?

You have the right to:

1.  Work in a safe, discrimination-free environment. Your employer is required by law to provide a safe working environment that is not "hostile" to you based on your sex or gender identity.

2.  Be told about your company's sexual harassment policies — including how to report — in a way that you understand.

• In California, your employer must have a written policy on harassment, and must make sure every employee knows the policy exists and gets a copy. The policy should be written in a language that employees understand.

3.  Talk about or speak out against sexual harassment, whether it's happening to you or to someone else. You can talk about sexual harassment or discrimination that's happening at work to whoever you want, including your coworkers or your supervisor. You also have the right to tell your employer (in a reasonable way) that you believe a company policy or practice perpetuates harassment, or a manager is engaging in harassment or discrimination. It is illegal for your employer to retaliate against (punish) you for talking with coworkers about harassment or discrimination.

4.  Report the harassment to HR or your boss. Report to HR, your boss, or someone else at your company who has power. We highly recommend reporting in writing (email or letter) and making copies so you have proof later if you need it. It is important to report harassment internally first if you might want to take legal action later. (See the What Can I Do? section below)

5.  Picket or protest against sexual harassment or other kinds of discrimination. In fact, when you get together with one or more of your co-workers to raise concerns about your pay or working conditions, you're engaging in what's "concerted activity," which is legally protected by the National Labor Relations Act.

6.  Have your complaint taken seriously and investigated. Legally, your employer must take complaints about sexual harassment seriously and investigate them. As soon as your employer is aware of the sexual harassment, the law requires them to (1) take quick action to stop it, and (2) adequately protect you or the person who's being harassed.

7.  Ask your employer what will happen and who will know if you file a complaint. You may want to keep your complaint confidential, but be aware: Investigations usually involve interviewing the harasser, the person complaining about harassment, and other employees as potential witnesses.

8.  File charges with a government agency, such as the Equal Employment Opportunity Commission (EEOC), or your state's fair employment practices agency — for example, the California Department of Fair Employment and Housing (DFEH). You also have the right to tell your employer that you plan to file a charge, and they cannot retaliate against you for doing so.

• Note: There are strict deadlines for filing charges with government agencies, called "statutes of limitations." The deadline to file with the EEOC is either 180 or 300 days from the "last act" of harassment, depending on which state you're in. In states that have their own anti-discrimination laws and agencies, including California, the deadline to file a discrimination complaint may be different. For more, see the What Can I Do? section below.)

9.  Sue (file a lawsuit against) your employer. This is only an option if you already filed a charge with the EEOC or your state's FEPA (see #8 above), and you get you a "Right-to-Sue" Notice. Be aware that there are strict deadlines about how many days you have after you receive that Notice to file a lawsuit in court.

10.  Testify as a witness, or participate in an investigation by the EEOC or other government agency. Your employer can't keep you from providing evidence, testifying at a hearing, or communicating with a government agency that is looking into sexual harassment or other discrimination at your workplace. Even if the investigation eventually finds that there was no harassment, your participation is still a protected right, meaning your employer can't retaliate against you (punish you) for cooperating.

11. Do nothing. It is a perfectly acceptable choice to do nothing about the sexual harassment or assault you experienced. It is 100% your decision whether or not to come forward about your experiences.

If you are fired or retaliated against (punished) for doing any of the above, it is illegal, and you could take legal action. Retaliation includes being fired or demoted, cutting your pay, changing your shifts, hours, benefits, or duties, being asked to take time off, or any other action that has a negative effect on you.

What can I do?

If you or someone you know is experiencing sexual harassment (including harassment based on gender identity or sexual orientation), here are some actions you can take. Remember: It is normal to be afraid or worried about reporting sexual harassment or taking other action to make the harassment stop. Do what is right for you, and don't do anything that you think will put you in danger. These are just examples of options you might want to consider.

1.  If you're comfortable doing so, ask the person who's doing the harassing to stop. You can do this verbally (in person or on the phone) or in writing (i.e., by letter, text message, or email). If you do so in writing, keep copies in case you need proof later. If you do so verbally, you may want to ask a trusted co-worker to go with you to serve as a witness.  If you don't feel comfortable talking or writing to the harasser directly, you should still keep detailed notes about your interactions and experiences. Keep your notes in a safe place outside of work, like at home or in a journal, your personal phone, or email account.

2.  Look at your company's policies and complaint process. Most employers give you an employee manual or handbook when you're first hired. Review this to find out what policies might be in place to protect you. If you never got a copy or lost it, ask for a new one. Look for sections or documents that mention harassment or discrimination, which often include information about how to report the misconduct. If there is no information about how to report, see if there is a phone number for HR (Human Resources) or employee relations.

3.  Write everything down.

• Write down what happened when the harassment occurred, including dates and times, where it occurred, what exactly was said or done, who said/did it, what you said or did, and any witnesses who were there. Include as much detail as possible, and keep notes about every time it happens or happened. If it happens again, write down the details again right away, while the memory is fresh.
• Keep notes of any conversations or meetings you have about the harassment, including with HR, your supervisor, or the person doing the harassment. Record the time, date, and place of the meeting, and who was there. If you're comfortable doing so, ask any witnesses to write down what they heard or saw.
• Keep all notes in a safe, private place at home, in a journal or notebook, on a personal email account, or in another safe place not at work.
  • Tip: Others may later read these written records as part of an investigation. So it's important to stick to the facts and be as objective as possible.
• Save any emails, texts, letters, or messages about the harassment, or between you and the harasser. Gather them in one place, at home, on a personal email account, or in another safe place not at work.
• Keep copies of complaints or reports you file with your company, and all responses.
• Keep copies of any other documents related to the harassment, and any responses.
• If you think your employer has retaliated against you, keep detailed notes of every action that happened, when, where, and any witnesses.

4.  Report the harassment to HR or your boss.  We understand it's not always possible to feel comfortable or safe at work after telling your boss or a supervisor about the harassment you're experiencing. But we recommend reporting harassment to someone at work who is in a position of authority, because it is harder to make your employer take action unless you report the harassment internally first.

• We recommend reporting in writing, whether it's by email or letter. Be sure to keep copies of your report(s) in a safe place outside of work, at home or on a personal email account. For examples of what to write in your report, see our Sample Internal Complaint Example in the Tools & Resources section at the bottom of this page.

• If you report orally (in person or on the phone), we recommend taking notes about the conversation and then sending a follow-up email or letter confirming what happened during the conversation. For example:
  • Dear [name of Supervisor or Human Resources Staff],
    I'm writing to confirm that we met today, [date], to discuss the fact that I am being sexually harassed by [coworker]. As we discussed, the harassing behavior has included [description of the harassment], and happened [number of times]/has been happening since [date]. You told me [description of employer's response]. Thank you for taking the time to meet with me about this issue. Sincerely, [Your name]"

5.  You could report the harassment anonymously. If reporting the harassment is not an option that feels safe or comfortable to you, you could make an anonymous report to HR or a manager. Some employers operate helplines or other ways for you to report problems anonymously, such as an employee assistance program or an Ombudsperson. There are also nonprofit organizations that allow you to anonymously report workplace sexual harassment, such as Better Brave or Callisto Expansion.

• Be aware: If you only report harassment anonymously, and don't say when, where, to whom things happened (or how you have personal knowledge of it), your employer may not be able to investigate or correct the behavior.

6.  Collective Action. You could come together with one or more workers to demand a meeting with your employer, submit a petition, or take some other action.

7.  Go to your union. If you're a member of a union, you could talk to your union representative or shop steward and consider filing a grievance. Ask about the collective bargaining agreement and see if it includes provisions about sexual harassment or other discrimination. If you go to your union with a complaint about sexual, racial, or other kind of harassment, the union has a duty to help you. This is true even if the person you're complaining about is also a member of the same union.

8. File a complaint with a government agency. If you have experienced harassment at work and your employer is aware but has not stopped it, ignored your report, or retaliated against (punished) you in any way for complaining or supporting someone else's complaint of harassment, you can file a legal complaint with a government agency: either with your state's anti-discrimination or civil rights agency (sometimes referred to as FEPA, or Fair Employment Practices Agency), or with the federal (national) Equal Employment Opportunity Commission (EEOC), which has offices nationally.  (File a complaint in California.)

• California: Visit the California Department of Fair Employment and Housing website for more information on filing a complaint with the DFEH.
• Other States:Visit the Equal Employment Opportunity Commission's website for more information about filing a charge with the EEOC.

• There are strict deadlines for filing with these agencies. (See number 11 below.)

• Important Note: If the government agency decides to investigate your claim, they will likely interview you as well as the person doing the harassing, and may tell them about your claims. They could also interview your supervisor(s), coworkers, people in HR, and others who may have witnessed the harassment or know about your complaint.
• Government agencies often take months to assign each case to an investigator, so the whole process could take many months or even years to complete. If you don't want to wait for the agency to do or complete an investigation, you may be able to request a "Right-To-Sue" notice so you can go directly to court. The rules on getting a "Right-to-Sue" notice are different depending on whether you filed with the EEOC or a state agency. You can ask the agency or the investigator assigned to your case to find out more.

• • Keep in mind: There are strict deadlines about how long you have to file a lawsuit in court once you get a Right-to-Sue notice. It's a good idea to talk to a lawyer before you file anything in court.

9. Talk to a lawyer. If you'd like to speak to a legal advocate about your options, Equal Rights Advocates may be able to help. We offer free, confidential legal information, advice, and other assistance through our Advice & Counseling service.Important note (Updated Aug. 18, 2022): Unfortunately, at this time we are unable to accept new applications for our Free Legal Advice & Counseling program due to current volume.  Please check back here soon for updates on our services.

10. You could sue (file a lawsuit against) your employer in court.

• Important Note: Before suing, you should first file a charge of discrimination with a state or federal government agency, and get a "Right to Sue" from that agency. Even if you plan to represent yourself (without an attorney), we strongly recommend speaking with an attorney before you take the step of filing a lawsuit in court.

11.  Pay attention to deadlines.

•  Depending on the state you work in, you either have 180 days or 300 days from the last time you were sexually harassed to file a discrimination complaint (or "charge") with the EEOC. (Sexual harassment is considered discrimination by the EEOC, so sexual harassment victims should file discrimination complaints.) Check the EEOC's website to find your state's deadline.
  • Caution: Making an internal complaint or report to your employer, or filing a grievance with your union, does not extend the deadline to file a complaint with the EEOC or your state's anti-discrimination agency.
  • You have 6 months if you want to file an unfair labor practice claim with the National Labor Relations Board because you were retaliated against (punished) for taking action against sexual harassment or discrimination at work with one or more of your co-workers. (This means you engaged in "concerted" activity, which is your legally protected right). Visit the NLRB website and click on your state for more information.

•  California
  • You have 1 year from the last time you were sexually harassed to file a discrimination complaint with the CA Department of Fair Employment and Housing.

What could happen?

If you take legal action, there are different kinds of "remedies" you can ask for. Some have to do with money, and others are more about changing your employer's behavior. Not everyone can get all of these things. Each case is different, but these are some common examples of things you can demand, and may be able to get if you're successful (i.e. if you win your lawsuit or reach a settlement).

1. Compensation for lost wages and other economic losses if the sexual harassment resulted in a loss of work or income (i.e., you had to take a leave of absence, lost hours, were fired and had no income for a while, or lost your job and have not found one that pays you as much.) You could also seek compensation for expenses related to any medical or health treatment you needed or will need in the future because of sexual harassment or retaliation.
2. Compensation for emotional distress and physical pain or suffering, which could include anguish, stress, anxiety, pain and suffering, loss of sleep, damage to your reputation, and loss of enjoyment of life resulting from harassment.
3. Reinstatement: If you were fired or forced out because of the sexual harassment or retaliation, you could potentially get your job back.
4. Punitive damages: If you sue in court and show that the employer acted with malice or showed "reckless indifference" to your rights, you may be able to get the court or a jury to order that the employer pay punitive damages, which are meant to punish especially bad employers and send a warning message to other employers.
5. Make your employer change their policies or practices.You may be able to get the court to order, or get your employer to agree to change the way it does things in the future to help make the workplace safe and fair for everyone, and to help ensure that others do not suffer the same thing you went through.

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Source: https://www.equalrights.org/issue/economic-workplace-equality/sexual-harassment/

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