The Harassment Victim’s Dilemma – Complain or Move On?

September 12, 2012 by Julie A. Uebler, Esq.

More than 20 years ago, Anita Hill spoke up about the sexual harassment she experienced while working with Clarence Thomas.  The popular commentary of the time was that no woman would complain about sexual harassment after seeing the way Hill was treated at the Congressional hearings.  All these years later, the question of whether a victim of sexual harassment can or should complain about the harasser’s conduct is far from clear in light of the cultural and economic deterrents to such complaints. Today, the women who decide to complain about sexual harassment are still ridiculed and ostracized.  Maybe one reason our workplaces are still full of sexually harassing behavior is because we rely on victims of harassment to confront the problem individually within workplaces that are focused on minimizing legal risks without adequate support from the broader community.

Earlier this year, when the New York Times reported on the discrimination and retaliation lawsuit filed by Ellen Pao, a venture capital partner at Kleiner Perkins Caufield & Byers, the reporter quoted several troubling reactions to the lawsuit.  For example, the article reported a supporter of the firm as asking: “Why did a talented woman stay for so long at a place that was treating her so poorly?”  A female executive, who runs a start-up funded by Pao’s employer, and who claimed that she always tried to “take the valley’s sexism in stride,” was quoted as saying:  “When men made passes, I just downplayed it so the guy doesn’t feel he’s being put down when rejected.”  The reporter also quoted a female executive as worrying that the lawsuit would send the message to male managers that they would be better off sticking “with the guys.”  As Susan Atilla so accurately described in her Bloomberg article about the Pao v. Kleiner lawsuit, Pao was already getting “a blast of a tried-and-true ‘nuts or sluts’ attack that deems women who sue as either crazy or a little loose.”

Why does sexual harassment in the workplace persist?  Why are we as a society still so unwilling to support the women who speak out and actually complain about it?  What if sexual harassment victims were not the only ones who had to shoulder the stress and costs of confronting the harassment?  What if we all took responsibility to make sure our work environments were free from sexual harassment?  What would happen to the prevalence of sexual harassment in our workplaces if:

  • – All of us responded to allegations of sexual harassment as if they were made by our sister or daughter, rather than a “nut or a slut”?
  • – Employees refused to “go along” when their clients or supervisors invited them to strip clubs as a form of business entertainment, or excluded women from networking opportunities because they might “kill the buzz” (as alleged in the Pao case).
  • – Human Resources professionals and other investigators were not afraid to conclude that the alleged victim’s allegations could be substantiated under the “more likely than not” standard based on common sense, as opposed to requiring “smoking gun” evidence. Why is the alleged harasser’s career any more important than the career of the alleged victim?
  • – Managers and co-workers stopped expecting the harassment victim to take steps to “fix” the broken relationships in the work environment after a sexual harassment investigation, and actually proactively worked with impacted departments to rebuild relationships and monitored for retaliation.
  • – Women, particularly those with power and leverage, felt confident enough to confront and/or complain about sexual harassment without having to worry about the backlash, including that such complaints would be career suicide.

The Choice

In the meantime, if a woman is subjected to sexual harassment at work, what should she do?  Just as sexual harassment is illegal, so is retaliation against an employee for filing a good faith complaint of sexual harassment.  Even so, I could never advise my clients that the law will “protect” them from retaliation if they file a complaint.  Based on my years as an employment attorney, I know women choose not to complain about sexual harassment based on a long list of reasonable fears.  A harassment victim reasonably fears that a complaint will:  ruin her career; cause her co-workers to label her as a troublemaker; result in additional embarrassment and humiliation; result in retaliation from the harasser, her employer, and other managers or co-workers; or create a risk to her physical safety.  Sometimes sexual harassment victims explain their failure to complain because, at least at first, they believe they can “handle it,” or because the victim does not believe the harasser has a “bad motive” (e.g., “he’s just joking around”).

Quit?

Sometimes I think this is the option most favored by (some) employers.  I can hear it now:  “Things would be so much easier on everyone if the new hire who claimed that the high performing sales manager made repeated, drunken passes at her at the sales conference would just move on.  After all, how can a young woman whose complaint results in the [discipline, demotion, exit] of a powerful manager ever have a successful career here?”  The key problem with this approach, aside from the victim-blaming, is that women who are subjected to sexual harassment often do not have a realistic choice to quit and move on, particularly in this economy.

Even for women who have the resume and financial security to move on, the choice to leave the work situation represents giving up years of investment, and the related future opportunities that would not be available somewhere new.  So, when someone comments about an alleged sexual harassment victim, as the New York Times reported about Ellen Pao, “Why [would] a talented woman stay for so long at a place that was treating her so poorly?,” the answer often is because she did not think she was the one who should suffer even more after having been victimized by the initial harassment.

Confront The Harasser?

In many circumstances, other than when the victim fears for her safety, the place to start is by confronting the harasser.  The “confrontation” need not be hostile or even formal to be effective, as long as it is timely, specific, and includes a request that the conduct stop.  For example, the victim might say:  “I feel embarrassed when you joke about my appearance…I want to be respected at work, and I would appreciate it if you stopped making those kinds of jokes.”  Sometimes it is easier for a victim to cite policy, than to take responsibility for being offended, such as:  “I am not sure, but I think jokes like that might be against company policy” or “You really should not [say/do that], you might get in trouble.”

Complain?

Unless and until a harassment victim complains (or the employer otherwise becomes aware of the harassment), the employer will not be able to take any steps to stop the behavior.  Despite the risks, there are plenty of reasons to complain immediately:

  • – The situation may just get worse.
  • – The victim may not be the first or only person harassed by the same harasser.
  • – There is a risk to the victim’s credibility from waiting. The harassing supervisor may give the victim a poor performance review in retaliation for not responding to his advances, yet an employer may assume the victim is claiming harassment only because of the poor review.
  • – Evidence in the employer’s possession may disappear (videotape surveillance, etc.).

Tips for Women Who Decide Not to Complain

If the sexual harassment victim does not complain to the employer at the time of the harassment, she should still take steps to get support and to preserve evidence in case she changes her mind later.  The harassment victim’s credibility will always be at issue, and, if she decides to complain later, she will be questioned about why she did not complain at the time of the harassment.  The harassment victim can minimize these risks by taking the following steps:

  • The harassment victim should tell someone else right away about the harassment – a friend, a spouse, a counselor. Anyone facing sexual harassment in the workplace needs emotional support, and an external source of perspective.
  • Document what happened – What? Where? When?  Were there witnesses?  The harassment victim should think about ways to identify the date the document was first prepared to avoid accusations that it was created later, such as sending an e-mail to herself.
  • Keep copies of any notes, photos, e-mails, cards, voicemails, texts, etc.

Tips for Women Who Decide to File a Complaint

When the harassment victim does speak up, she should be prepared to be interviewed in connection with the employer’s investigation, and should consider preparing a written complaint ahead of time that identifies the specific facts relating to each incident of harassment (What? Where?  When?  Were there witnesses?).  The harassment victim should also be prepared to explain how she responded to each incident and how the harasser’s actions impacted her, as well as to identify anyone else who knows about the incidents (who did the victim tell and when?).  If there was a delay in making the complaint, the harassment victim should be able to explain the reasons for that delay.  The employer’s obligation is to stop the harassment and to take steps to prevent it from happening again.  Even though the employer is not obligated to implement disciplinary action based on the harassment victim’s requests, she should be prepared to respond to the question – how would you like to see this situation resolved?

The harassment victim should also be aware that the employer’s obligation to maintain confidentiality is limited, that is, the employer can offer to maintain confidentiality only to the extent it is possible while conducting a complete investigation.  The harassment victim should be prepared for the likelihood that the harasser and any potential witnesses will be interviewed and will become aware of the specific allegations.  Once the investigation is completed, the harassment victim can expect to be advised that it is concluded, and whether or not her allegations have been substantiated.  However, the harassment victim may not be advised of the specific actions taken by the employer to address the situation.  She should, however, confirm how best to report any additional harassment or retaliation for having filed the complaint.

If someone you know is subjected to sexual harassment at work, encourage her to consult with an experienced employment attorney about the specific circumstances of her situation so that she is better prepared to weigh the risks and benefits of each of her options.

Julie A. Uebler, Partner | Employment Law

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