Joel Dillard & Associates

In a recent survey released by noted blog fivethirtyeight.com, over 1,000 respondents were asked what should you do when you have been the victim of sexual harassment. In the scenario presented, a combination of texts and verbal encounters with a co-worker showed the co-worker making repeated sexual advances, being rebuffed, and then insulting and criticizing the victim. Respondents were given five choices, with the following results:

1. Compile the texts and confront the harasser. 7.8%
2. Compile the texts and do nothing. 6.5%
3. Compile the texts and take them to human resources to notify them ahead of any repeat incident. 40.1%
4. Compile the texts, take them to HR, and ask to be moved. 33.2%
5. None of the above is good advice. 12.5%

The law in this area is far more complicated than you might expect, and to make the best decision, it is important to understand this legal background.

Is this illegal sexual harassment?

Harassment was not explicitly addressed in the sex discrimination provisions of Title VII of the Civil Rights Act, which only spoke to adverse employment practices - typically demotion, suspension, non-hiring, termination, etc. But the Supreme Court recognized in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that harassment because of sex can be unlawful.

But the Court explained that the harassment must be severe or pervasive and it must be because of sex, race, disability, etc. An equal opportunity harasser - that is, someone that is mean to everyone, or even a bisexual that sexually harasses on both men and women at work - is not violating the statute, as noted in among other cases, Holman v. Indiana, 211 F.3d 399 (7th Cir. 2000).

And the severe or pervasive standard is sometimes quite difficult to meet, especially in the Fifth Circuit, as the employee found in Jones v. Flagship Int'l, 793 F.2d 714 (5th Cir. 1986). My rule-of-thumb is, unless there has been either unwanted offensive touching (assault), or at least weekly explicit communication (well attested by evidence), then you can't be certain whether the court will see it as severe or pervasive - although there are many cases where far less was accepted, such as in Idom v. Natchez-Adams School Dist., 115 F. Supp. 3d 792 (S.D. Miss. 2015).

What steps should be taken to respond to harassment?

The next steps depend on the precise nature of the harassment, and the victim's goals in addressing it. For example, if the harassment is by the boss, and involves a quid pro quo - like, sleep with me or you are fired; sleep with me and you get a raise; etc. - then sometimes the best next step is to file an EEOC charge, develop the evidence, and proceed into court if the matter does not settle. This kind of harassment the employer is liable for, even if it isn't reported to HR. With that said, depending on the claim, the kind of company, and the victim's career situation, sometimes it is better to go to HR first, or to take other steps. This is a question of strategy, rather than pure law.

But if the harassment is by a coworker or customer, or if the supervisor is not engaging in any explicit quid pro quo, then a complaint to HR is generally MANDATORY before filing an EEOC charge. In fact, before the employer can be held liable, you must follow all the official procedures of the employer for reporting harassment, and give them a chance to fix it. This was the holding of the Faragher and Elerth cases. (This doctrine doesn't apply if the company has no such policy, or if the policy is futile - like reporting the misconduct directly to the harasser.)

This played out to agonizing effect in Harvill v. Westward Comm. LLC, 433 F.3d 428 (5th Cir. 2005) In that case, the plaintiff was clearly harassed:

In her deposition, Harvill testified that, during that seven-month period, Rogers grabbed her and kissed her on the cheek, popped rubber bands at her breasts, fondled her breasts numerous times, patted her on her buttocks numerous times, and came behind her and rubbed his body against her. At one point, Harvill estimated that Rogers touched her breasts or her buttocks perhaps as often as once a week—although she later stated that it may not have been as often as once a week. She also claims that on one occasion Rogers made comments to her about her sex life and her abilities in bed.

When Harvill did contact Human Resources, the company immediately separated Rogers and Harvill, after which time Harvill concedes that all harassment ceased. Therefore, Westward contends that it did take prompt remedial action that was calculated to end the harassment after Harvill bypassed [supervisor] French and took advantage of the corrective opportunities made available to her [by HR].

Pitfalls: retaliation and sham investigations

Be aware though: HR representatives are not your representatives, they are the company's representatives, and their first mission is to cover the company's butt. This may mean helping you, and it may mean proving you a liar (even if you are telling the truth).

Also be aware that going to HR about sexual harassment is statutorily protected activity: you cannot lawfully be fired or disciplined or in any other way retaliated against because of it. But that does not mean it does not happen, so be sure to document who knows about your complaint and when they learned of it. It may be helpful to tell the harasser and your boss immediately by emailing them a copy of the complaint, to prove any subsequent actions are potentially retaliation.

Taken together, this means that occassionally - rarely - the best response for some victims' goals is to ignore it and look for other work. I wish it were not so, but practically speaking, the law is sometimes not strong enough to meaningfully protect the complainant. I'm thinking most particularly of complainants in careers or environments with a small pond culture, where an informal blacklist can develop that destroys the victim's career if she complains. This is becoming far less common nowadays, but it is still true sometimes.

The bottom line: call a lawyer

The bottom line, though, is that the 73% percent of respondents to the survey that said to go to HR were generally right - and I would add that the victim should read the employee policy handbook carefully and follow it. But equally important is the advice of good lawyer first, who can keep you on the straight and narrow path to best protect your career and interests.

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