I have practiced employment law for a few years and having handled a number of sexual harassment cases, there are many mistakes that are common to employees bringing suit. Although these mistakes may not be show stoppers, individually or collectively, they can reduce an employee’s damages in a harassment case.
1. Failing to Report Harassment to Management. In many harassment cases, the employee may be uncomfortable and she will keep the offense to herself. She never reports the harassment and eventually quits and then hires an attorney to sue her former employer. In harassment cases, employers are able to assert as a defense that it has a policy against harassment and the employee failed to avail herself of that policy. As soon as the harassment occurs, the employee needs to alert management and give management an opportunity to correct the problem.
2. Failing to Document the Harassment. When faced with harassment, an employee may be overwhelmed by the atmosphere created at work. If she later hires an attorney, she may have a hard time remembering the specifics of her case. Also, the employee should document her complaints to management. While management should do a good job of keeping records, this does not happen all the time. An employee will have a much stronger harassment case if she is able to show each complaint made to management and management’s failure to take action on her complaints.
3. Quitting Too Soon. In this situation, an employee may witness a co-worker looking at pornography or observe a co-worker telling off color jokes. Without informing management, she may be disgusted by her co-worker’s behavior and abruptly quit. She may also share her experience with a friend or neighbor, who sympathizes with her circumstances. There may be a good chance that she will not have a case because by quitting too soon, she failed to give management an opportunity to correct the offending behavior. She may argue that the harassment amounted to a constructive discharge, but a court would disagree if it finds that the harassment did not rise to a level to become intolerable. The more prudent course of action for an employee in this situation is to consult with counsel prior to quitting. The exception to this is when the co-worker is repeatedly putting his hands on the employee and management fails to correct what is happening.
Sexual harassment involves unwelcome verbal or physical conduct in the workplace. Employees should understand that sporadic or isolated incidents generally do not rise to the level of harassment. Employees should be familiar with their company’s anti-harassment policies to understand the actions they should take when experiencing harassment. Before deciding to quit, an employee should consult with a labor and employment attorney to determine whether the company’s actions or inactions constitute a violation of the law.
If you have any questions regarding harassment law or employment law, feel free to call Rich Bradford at (813) 413-2402.