Workplace sexual harassment is the making of unwelcome and inappropriate sexual remarks or physical advances in a workplace. The idea behind sexual harassment is not to eliminate all flirtation or all expression of romantic or sexual interest between one human being and another. The key is that it should not be unwelcome. Once you ask or express interest, if there is no reciprocation, stop. If it is hostile, pervasive, or persistent, we are in the realm of sexual harassment.
What steps should someone take if they've been sexually harassed in the workplace?
Sometimes, the very person doing the sexual harassing is the person to whom you are supposed to report the sexual harassment. If your boss is sexually harassing you and you are in a small business without an HR Department, to whom are you supposed to report the sexual harassment? The reason people get so uncomfortable about taking the steps that are required to protect themselves is that the practical reality of life is that people understand that they are putting themselves at risk of retaliation.
If it’s your boss harassing you, ask him or her to stop and make it really clear, kindly and respectfully if you can, that you are not interested. Talk to the boss’s boss. If you’ve got a human-resources department, report it to them. But keep in mind: the human-resources department is rarely if ever your friend. Recognize that you are still risking retaliation. You should have some proof of the harassment. If it’s possible, audio record what takes place. Keep in mind that some workplaces have an anti-recording policy and they will retaliate for you violating that too. You also need to ensure that you are in a state where only one party’s consent is needed for making an audio recording. In Ohio, all that is needed is one party’s consent.
The steps that need to be taken are reporting the sexual harassment and trying to develop some proof of it. If there are harassing text messages and emails that have been sent to you, make sure that you’ve secured the emails off site. If you are fired, you will find yourself without access to the evidence. If there are text messages and they are on a company phone, take screenshots of them and email them to yourself, preferably using a private email address.
If you don’t report the harassment, your employer can’t be held liable.
You have to report it and where the employer can be held liable is if the employer fails to act or if the employer retaliates. Retaliation cases are easier to prove than the underlying sexual-harassment cases. If we can show a sudden change in posture towards you by the company after you have reported, it makes a retaliation case easier to prove.
For a retaliation case, the underlying sexual harassment doesn’t have to be proved. The retaliation case can be proved because people are retaliating against you for complaining about something in good faith. The earlier that you contact an attorney to advise you through the harassment you are experiencing, the better. Sometimes, we are approached by people who have been harassed, reported it, and been retaliated against but we don’t have enough information to prove it. It breaks our hearts that that case really isn’t going to go anywhere because the employer is going to come up with some pretextual excuse as to why it did what it did.
In Ohio, the statute of limitations for filing a court case in state court for sexual harassment is six years, which is very generous. But if you want to try to get government intervention, you have to file with the Equal Employment Opportunity Commission within 300 days in Ohio of the improper conduct. In some jurisdictions, it’s 180 days. If you blow that time, then you are not going to have the ability to have someone launch a government investigation into what happened and you can’t file a federal lawsuit. You might still be able to file a state lawsuit.