Following my initial article on how employers can prevent workplace harassment, a second article on June 26, 2018, addressed workplace harassment from employees’ viewpoint — what constitutes unlawful workplace harassment and the forms it takes.
This article will describe what employees can do to prevent or stop workplace harassment.
- What to do if you believe you are being harassed.
Although the approach may vary on the basis of the circumstances and the type of harassment involved, the following steps are generally applicable to situations in which employees believe they are being subjected to workplace harassment.
- Say something.
An employee experiencing harassment will often face a difficult dilemma: most employees would prefer to avoid creating “issues” that they fear may threaten their jobs or their status with the employer.
At the same time, however, unlawful harassment, by definition, interferes with employees’ ability to work, and will often get worse as a result of employees’ silent inaction. Moreover, a harasser’s objectionable conduct is rarely limited to a single employee, and the investigation of one employee’s claim of harassment will often turn up other employees who also have experienced harassment from the same employee.
Experience with numerous harassment situations over many years inevitably leads to the conclusion that it is in employees’ best interests to address harassment promptly. Time is not on the side of the employee in such situations. Failure to report harassment promptly can raise questions about the validity of the report. Failing to bring up harassment until the employer has begun termination proceedings against you, is moreover, unlikely to save your job or to make the harassment claim appear credible.
If you are being subjected to hostile-environment harassment by another employee, you may be able to resolve the matter by telling the harasser that you do not appreciate his or her conduct and asking that it stop. Regardless of whether it stops, you will have fulfilled an essential element of a harassment claim, by putting the person on notice that the conduct is unwelcome. As such notice can be critical both to stopping the harassment and to making a claim, it is advisable to convey that message in writing, such as by email.
If the harassment continues and your employer has an anti-harassment policy, submit a report according to the procedures in the policy. If the employer does not have an anti-harassment policy, report the problem to a manager. The anti-harassment policy should include provisions for making a report to a senior manager for situations in which the harassment is by an employee’s immediate supervisor. If the policy does not include such a provision, report the matter to a manager senior to the harasser.
If a supervisor has taken adverse action against an employee due to the employee’s resistance to quid pro quo harassment, the employer’s liability is generally automatic without more. If an employer offers an internal procedure for obtaining relief from hostile-environment harassment, however, an employee’s failure to use the employer’s procedure in response to harassment will usually immunize the employer from liability.
- Ask for interim relief.
An employee who has reported quid pro quo harassment or severe hostile environment harassment is often entitled to interim protection during the employer’s investigation of the report. The interim relief provided must not prejudice the reporting employee, however.
For example, an employee who has reported quid pro quo harassment by her supervisor should be protected from further contact by the alleged harasser but should not be transferred or suspended. Rather the reporting employee’s supervisor should be relieved of oversight of the employee, and, in some cases, physically moved to prevent further contact with the reporting employee. Similarly, if an employee reports having been subjected to racial slurs by a co-worker, it is the co-worker who should be moved during the investigation, rather than the reporting employee.
- Report any retaliation.
The laws that prohibit harassment also prohibit retaliation against an employee who has reported harassment, and against any other employee who assists the reporting employee, provides evidence during the employer’s investigation, or otherwise participates in the matter. A complete anti-harassment policy should include non-retaliation provisions.
Retaliation for reporting harassment is prohibited regardless of the source of the retaliation, whether from the employer, from the accused employee or supervisor, or from friends or allies of the accused employee or supervisor. Retaliation is also unlawful regardless of whether the harassment charge is ultimately upheld.
- Further action.
An internal report of harassment should result in the employer conducting an investigation of the report, determining the validity of the charge, and, in valid cases, providing remedies, including disciplinary action against the harasser.
If an employer ignores a report of retaliation, or fails to provide an effective remedy and consequences, or the reporting employee experiences unremedied retaliation, the employee will have to take the matter to an outside agency. Many states have local fair employment practices agencies, but in North Carolina the only agency with investigative jurisdiction is the federal Equal Employment Opportunity Commission (EEOC).
The EEOC can investigate charges of harassment or retaliation and may be able to bring about a voluntary agreed-upon resolution between the parties, but it has no enforcement power of its own. It’s decision on the validity of a charge of harassment is not binding on either party, but once the EEOC has had an opportunity to issue a determination, the charging party may then proceed to filing a lawsuit for the harassment in court.
Although an employee experiencing harassment is not required to have an attorney for any of the foregoing processes, individual situations vary and may have differing legal considerations and consequences. Nothing in the foregoing should be regarded as creating or offering an attorney-client relationship nor should it be taken as legal advice. For guidance on your personal situation, contact a qualified attorney.