No, Title VII expressly forbids an employer from retaliating against an individual for speaking out against harassment or filing a charge of harassment. It also protects you from retaliation if you choose to participate in an investigation, proceeding, or hearing on behalf of a co-worker whose rights you believe were violated. Don’t be afraid to speak up if you or someone you know is suffering from workplace harassment!

When dealing with sexual harassment, there is no one best thing to do, because every situation is different. However, there are two important things to remember, as they affect your ability to pursue legal action should you decide to in the future.

Say no. One legal requirement for sexual harassment is that the conduct be “unwelcome.” Make sure the harasser knows that his or her conduct is unwelcome. Tell the person that his or her behavior offends you. Firmly refuse all invitations for dates or other personal inaction outside of work. Don’t engage in sexual banter or flirt back in response, or otherwise send mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away.

Report harassment to your employer. It is very important that you report the harassment because your employer must know or have reason to know about the harassment in order to be legally responsible for a co-worker, client or customer’s sexually harassing conduct. Tell your supervisor, your human resources department or some other department or person within your company who has the power to stop the harassment. It is best to notify them in writing, and to keep a copy of any written complaint you make to your employer. Describe the problem and how you want it fixed. This creates a written record of when you complained and what happened in response to it. If there is a policy employees are supposed to follow when reporting harassment, you should follow the policy to the fullest extent possible. While you may not think complaining will do any good, your company may later claim it would have stopped the harassment if it had known about it, so reporting the conduct is very important to show that the company was aware of the harassment.

Other strategies you may also want to try at this point:

Write it down. As soon as you experience the harassment, start writing down exactly what happened. Be as specific as possible: write down dates, places, times, and possible witnesses to what happened. If possible, ask coworkers to also write down what they saw or heard, especially if the same thing is happening to them. Others may read this written record at some point, so be as accurate and objective as possible. Do not keep the record at work, but at home or in some other safe place where you will have access to it in case something suddenly happens at work.

Keep your work records. A harasser may try to defend him or herself by attacking your job performance. Keep copies of any records of your work performance, including copies of your performance evaluations and any memoranda or letters documenting the quality of your work. If you do not have copies of relevant documents, try to gather them (by legitimate means only). In some states and/or according to company policy, you are allowed to review your personnel file, so you should review your file if that is allowed. You should either make copies of relevant documents or take detailed notes of what is in the file, if you are not allowed to copy the contents.

Talk to others. If you can do so safely, talk to other people at work about the harassment. You may find witnesses, allies, or others that have been harassed by the same person or who would be willing to help support you. Tell supportive friends, family members, and colleagues about the abuse. Telling others about the harassment not only can give you much needed support, but it can also be important evidence later.

• Keep a record of the discriminatory practices you believe are taking place.
• Check your company’s employee handbook. Your company may have an Equal Employment Opportunity Officer or another way for you to file an internal complaint. For instance, some companies offer mediation or other tools to resolve problems.
• Keep timing in mind. In most cases you have 180 days — six months — from the date of the discriminatory activity to file a discrimination charge with the EEOC in order to preserve your rights.
• Keep doing a good job and keep a record of your work. Keep copies at home of your job evaluations and any letters or memos that show that you do a good job at work.
• Seek support from friends and family. Harassment at work is a difficult thing to face alone, and the process of fighting harassment can be very stressful.
• You can contact the EEOC to speak with a counselor about your legal rights whether you choose to file a claim or not. The EEOC may investigate and/or offer mediation services to help resolve the complaint.

Was the complaint investigated or not? If the prior complaint was not investigated at all, return to the person or department to whom you previously complained and find out why your complaint was not investigated. Be sure to provide information about the new harassment that was not part of the previous complaint. Make it clear that you expect the company to investigate your complaint.

If the prior complaint was investigated, but nothing was done to the harasser, find out why. Was it because an investigation did not turn up sufficient proof? If so, find out (either from the company or other witnesses to the harassment) whether other employees were interviewed, and what information (if any) the company is willing to disclose about what it learned in the investigation. Perhaps your witnesses were fearful for their jobs and did not back you up, or the company did not do a thorough investigation. Some companies take the position that disciplinary matters are confidential, and even though discipline was taken, the company will not tell you what happened.

If you are still being harassed, you should let your employer know that the action taken was not effective to prevent the harassment from happening again, and that a stronger deterrent is necessary. Especially if your supervisor has taken a tangible employment action, you may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

Has the harassment stopped? If so, perhaps the threat of the investigation itself has been sufficient to deter your harasser from further harassing conduct. You still may be able to file a legal claim, based on what happened prior to the investigation, but it may be an uphill battle to prove harassment, since the company’s actions may not appear to be unreasonable.

If the harassment has not stopped, then you may be able to prove that the company’s investigation was inadequate and not sufficient to deter future harassment. You may want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

When you first complained of harassment, your employer should have made clear to you that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot be expected to guarantee complete confidentiality, since it may be impossible to conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about your allegation and any record of your complaint should only be shared where it is necessary to the investigation.

There may be a conflict between your desire for confidentiality and your employer’s legal duty to investigate, if you inform a supervisor about alleged harassment, but ask him or her to keep the matter confidential and take no action. If the supervisor does nothing, it could subject the employer to a future lawsuit. While it may seem reasonable to let you determine whether or not to pursue a complaint, the employer still has a duty to prevent and correct harassment.

One mechanism to help avoid such conflicts is for an employer to set up an informational phone line for employees to discuss questions or concerns about harassment anonymously. It may be too late for you, but it could prevent others from having a similar experience to yours.

If the harasser or other coworkers are treating you differently because you made a complaint, that can be a form of retaliation, which is also illegal. (See the next question for more information on this topic.) You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

An employer in this situation may be faced with two competing principles in determining the appropriate response to harassment:

One principle is that disciplinary measures should be proportional to the seriousness of the offense. If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.

A second principle that the employer must keep in mind is that remedial measures should not adversely affect the person who complains of harassment. Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.

Companies have a number of options when dealing with an employee who admits the harassment or is found by the company to have engaged in harassment, based on the evidence. The following is a list of actions open to the company that have been recognized as appropriate responses to harassment:

Measures to stop the harassment and ensure that it does not recur:

• oral or written warning or reprimand;
• transfer or reassignment;
• demotion;
• reduction of wages;
• suspension;
• discharge;
• training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
• monitoring of harasser to ensure that harassment stops.

Measures to correct the effects of the harassment:

• restoration of leave taken because of the harassment;
• expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
• reinstatement;
• apology by the harasser;
• monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and
• correction of any other harm caused by the harassment (e.g., compensation for losses).

Your company, based upon its perception of the seriousness of the offense, may have chosen to take measures other than transfer or reassignment of the harasser to stop the harassment. Given that the harassment has stopped, it may not be legally obligated to transfer the harasser if lesser measures were sufficient, and the only remaining problem is merely your discomfort. The company may also fear that accepting your offer to be transferred will invite a future retaliation claim and/or there may not be other appropriate jobs available at this time. You may want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened, or whether there are any other ways you may be able to obtain a transfer.

One legal requirement for sexual harassment is that the conduct be “unwelcome.” Make sure that your boss knows that you now consider his conduct to be unwelcome. Tell him that his behavior offends you. Firmly refuse all invitations for dates or other personal inaction outside of work. Don’t engage in sexual banter or flirt back in response, or otherwise send any mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away. If the conduct continues, then it is very important that you complain right away to your company. (For more information about complaining, see question 18.)

The relevant questions in determining whether you have a valid harassment claim will be 1) did you clearly make it known to him his actions were unwelcome? 2) Did you complain internally under the firm’s harassment policy? 3) Did your own actions indicate that his behavior was welcome?

It is admittedly more difficult, but not impossible, to prove the conduct is “unwelcome” when you first willingly participate in conduct of a sexual nature but then cease to participate and then claim that any continued sexual conduct has created a hostile work environment. You will have the burden of showing that any further sexual conduct is unwelcome, work-related harassment.

If your boss pursues a “tangible employment action” because you will not continue the relationship, then your case becomes stronger. After a negative employment action is taken the issue of whether the conduct was unwelcome is no longer a key factor. The question then will be whether there was a non-discriminatory reason for the employment action. In a situation where a harassing supervisor undertakes or has significant input on an employment action affecting you there will be a strong assumption that discrimination was the reason. It can be presumed that the harasser could not make decisions about your employment in an objective, non-discriminatory fashion.

You may want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

You can expect your employer to take certain steps when it investigates the complaint. These include:

• A prompt, thorough, and impartial investigation.

As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances. If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.

• Interviews

The investigator should interview the employee who complained of harassment, the alleged harasser, and others who could reasonably be expected to have relevant information.

• Take steps to make sure that harassment does not continue.

If the parties have to be separated, then the separation should not burden the employee who has complained of harassment. An involuntary transfer of the complainant could constitute unlawful retaliation. Other examples of interim measures are making scheduling changes to avoid contact between the parties or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.

It may seem that these guidelines favor the person complaining of harassment; however, the company could face a serious lawsuit from the person who complains if it does not investigate the complaints promptly and thoroughly. Therefore, many companies take initial complaints very seriously, even if they are later proven to be either untrue or incapable of being substantiated, so you should view a thorough investigation as an opportunity to prove your innocence, rather than as a presumption that you are guilty.

For the protection of both the complainant and the person accused of harassment, information about the allegations and any records of the complaint of harassment against you should have been shared only with those who need to know about it. You should seek assurances from your employer that it will keep information about the complaint confidential, and will ask all participants in the investigation process to do so as well.

Some companies, in an effort to reduce and/or prevent lawsuits, have adopted a “zero tolerance” policy where sexual harassment is concerned, which has led to employees being disciplined or terminated for conduct that was previously tolerated at work. So it is probably wise to realistically assess your conduct to determine whether the complaint may have any merit at all, even if some allegations are either untrue or cannot be proven. Even if your conduct does not get you in trouble this time, it may in the future.

You may also want to consult with an attorney at this point to discuss your participation in the investigation, and to determine whether you have any legal remedies in the event that the company does take any action against you for harassment.

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