HOUSTON – The #MeToo movement has folks asking lots of questions about what is and isn’t sexual harassment.
They want to know how to file complaints. They’re also expressing concern about whether they’ll lose their job for making a sexual harassment complaint against a co-worker or boss.
Sexual harassment in the workplace has been illegal in the United States for 30 years, but the #MeToo movement shows that hasn’t stopped it. However, things may be changing.
The story looks at why so many victims don’t report workplace sexual harassment and why when you report is critical.
Below, we have expanded information from the Texas Workforce Commission, the Federal Equal Employment Opportunity Commission and Houston Employment attorney Todd Slobin.
What is workplace sexual harassment?
Slobin, who specializes in Equal Employment Opportunity sexual harassment cases, said, “In the employment setting there’s two main types of sexual harassment. There’s what’s called quid pro quo sexual harassment, which is: You need to do this sexual act for me, or you need to do this or that, and if you don’t, something bad is going to happen -- I’m going to fire you. I may demote you, or I may pay you less.
"And the other part is kind of a hostile work environment sexual harassment, where it’s unwelcome, and that’s the key word, and people lose track of that because -- let me kind of define it first. If there’s unwelcome sexual harassment, where somebody says or does something that you don’t feel is right, you feel it’s inappropriate, it’s uncomfortable, it’s sexual. There’s a lot of instances where it's asking somebody out, asking or sending them naked photos of yourself, or asking them for naked photos, or saying you want to have sex with them. You know, all of that is sexual harassment. "There are lots of things that the courts will acknowledge are petty or slights that don’t amount to sexual harassment, and that’s kind of the line that that’s where it becomes a case-by-case basis.
"There’s a case here in the Fifth Circuit which says, you know, just asking somebody out at work if you were to say, 'Do you want to go out with me on a date,' and they say 'no.' A one-time instance like that is not gonna be sexual harassment, but if you have your boss who says, 'You need to have sex with me to keep your job,' or, 'I want to have sex with you,' or sends flowers or poems or inappropriate texts, that clearly is going to be sexual harassment."
[Texas Workforce Commission: Workplace sexual harassment overview and how to file a complaint: http://www.twc.state.tx.us/jobseekers/sex-discrimination#overview]
What are the rules for reporting sexual harassment to state or federal agencies? Is there a time limit?
Slobin said, “I think people need to know when you hear all of these stories about 20 years ago and 13 years ago, those aren’t really in the employment setting, and so that’s the big misconception out there, is that people believe, well this happened 20 years ago. I’m going to report this now and I want the company to take action. Great that you’re reporting it, and it will help you with maybe a retaliation claim if the company does something against you, but with sexual harassment claims, you really have 300 days under the federal laws to file your EEOC charge. You have 180 days under the state law, so it’s less than a year that you have to report and go to the company and complain to human resources that you’ve been sexually harassed, that you’ve been a victim. It’s not five years or 10 years. I think that’s a huge misconception.
"The other thing I think is very important for people is if something is happening to you, whether or not you believe human resources is going to do something, under the law you need to report it. You need to document it. You need to protect yourself. I would send an email, or I would follow the company’s protocols, because if you don’t, you’re going to lose the right to complain, the right to sue the company, potentially, for what’s happened to you. And that’s the worst scenario -- when you see people come forward past the statute of limitations and it’s a really horrible situation and they were just afraid for the job. They were afraid, um, how were they gonna pay the bills, and I think now you are seeing because people are coming forward and they are seeing this 'Me Too' movement. People are going to start coming forward and looking out for themselves and feel comfortable to go forward."
[Federal Equal Employment Opportunity Commission links: https://www.eeoc.gov/laws/types/sexual_harassment.cfm]
Does sexual harassment have to go on for a long period of time, or can it be a one-time incident?
Slobin said, “The law defines it as “severe” or “pervasive,” and I think that’s a critical distinction. It doesn’t have to be severe and pervasive. It can be a one-time instance, again, a sexual assault, you know, one night in a hotel being assaulted by your supervisor is enough to constitute sexual harassment, but it can also be pervasive, where you have it, in a lot of cases, an ongoing, you know, on a daily basis, on a weekly basis, you know, just a barrage of inappropriate comments, so that, that, that’s really the key, you know, severe or pervasive, but it really doesn’t have to be both.”
[EEOC – Task force study on harassment in the workplace – released June 2016: https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf]
Do victims continue to work at a company where their workplace sexual harassment occurred? Will they in the future?
Slobin said, “I think for the victim in almost every case, in almost every case, the victim no longer is at the company. I mean, if you complain you will either leave on your own because you are uncomfortable being there and you’ve lost faith in the company and what they’re willing to do, or they push you out.
"There are a lot of retaliation claims. If you report your boss and this guy is making a lot of money for the company they’re gonna figure out a way to get rid of you -- and they’ll do that -- they’ll say that it’s a, you know, layoff or they’re downsizing or whatever it is, they’re gonna get rid of you. So I would say (before) the what’s going on right now, everyone was being let go or somehow their employment was ending, but for the harasser, in almost every instance, they were staying because they’re making a lot of money for the company. You know, it’s just a slap on the wrist, or they don’t really care to get rid of that person, and I’ve seen it over and over and over again. I’ve had companies tell me off the record, you know, 'We’ve had this with him before,' and yet they continue to employ him because they make them so much money. I think now there is a day of reckoning. I think now the goal will hopefully be to continue on with the victim, continue to allow them to be part of the company environment, and continue to let them have a job, whereas with employers when they have somebody who is harassing people or propositioning them for sex, or is doing all things considered sexual harassment, I think now they’re going to get rid of that person because of the backlash they will face if they don’t."