OPINION: What You Need to Know Before Filing a Sexual Harassment Complaint

A human resources expert offers her advice.

ByABC News
November 17, 2016, 9:42 AM

— -- Cynthia Shapiro is a human resources expert and author of “Corporate Confidential." Watch the ABC News "20/20" hour, "Crossing Lines: Women and Men at Work" on Friday, Bov. 18 at 10 p.m. ET.

Sexual harassment is illegal. It is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

Most companies have anti sexual harassment policies and many also have formal training relating to the prevention of sexual harassment in the workplace. It shows up in many employee manuals and most companies tell employees to go to human resources or a manager the moment they feel uncomfortable or feel an incident might have occurred.

However, what companies fail to tell employees is that not all companies are doing this out of the goodness of their hearts. Even though sexual harassment is strictly illegal, many companies tell employees to notify right away because they want to get ahead of, and hopefully squelch, a potentially damaging legal issue for the company. Companies need to avoid potential lawsuits, and some will do it at any cost. The harsh reality is that many employees who file claims of sexual harassment find themselves discounted, sidelined, and even managed out or fired. Retaliation for filing a claim is illegal, but it continues to happen subversively in many workplaces.

The law itself cannot protect you completely, you need to protect yourself. If you are considering filing a claim of sexual harassment, answer these questions first, and know how to make the claim in a way that protects you as much as possible.

Ask yourselves these questions before considering filing a formal claim with your company for sexual harassment:

1. Does your situation meet the definition of sexual harassment (not your personal view of what is offensive, but the established definition)? See definition from U.S. Equal Employment Opportunity Commission (EEOC) HERE. Yes/No

2. Have you experienced more than one incident? Yes/No

3. Do you feel that the harassment you’ve experienced is severe and offensive enough that you would have to leave your job if it didn’t stop? Yes/No

4. Are you willing to potentially risk this job in order to make the offensive behavior stop (for you personal, and potentially for other present/future victims)? Yes/No

5. Are you willing/able to handle potential retaliation in the form of possible teasing from other employees, being discounted, and/or losing opportunities in your career/job that may be important to you? (Note: retaliation for filing a claim is illegal, but many companies and managers subversively engage in the practice. Many victims of sexual harassment openly state that the retaliation they experienced after filing a claim was more severe than the actual harassment). Yes/No

6. Do you have any witnesses or other people who would be willing to stand with you and even potentially jointly file the claim with you? Yes/No

7. Are there others in the company you know of who have filed claims? Yes/No

If someone did file a claim, is that person/people still with the company? If the answer to this is “no” then you cannot count question 7 as a “yes”. This means the people who filed had to leave the company for some reason after doing so.

If you answered “yes” to numbers 1, 3, 4 and 5, you can consider moving forward. If you answered “yes” to numbers 2, 6 and 7 in addition to the others, your case is that much stronger and safer. (Please note: even if you answered “yes” to all seven, there is no assurance of 100 percent safety. Every company is different, and every claim is different. Answering “yes” to all of these questions is not an assurance of a positive outcome for the accuser. These questions are merely designed to make the process safer for the individual considering filing a formal sexual harassment claim with their employer).

Considering moving forward? Here are general rules for doing it properly in order to provide as much safety for your career/job as possible:

1. See if any witnesses or other victims will stand up with you. There is always more safety in numbers.

2. If you feel you can do so safely, go to the harasser directly, in private, to tell the person that you need the specific behavior to stop. Be respectful, very specific, and very clear. (Note: many people are too traumatized to face their harasser directly. If you feel this is something you simply cannot do, and you still want to move forward with a claim, be sure to answer the 7 questions above, and make sure you can answer “yes” to 1, 3, 4 and 5 before considering moving forward).

3. If you felt you were able to address the issue safely, professionally, and privately with the harasser, personally document that meeting with him/her and the specifics. Keep your documentation as dry and factual as possible, free of any embellishment, emotion, or opinion. You are essentially creating a legal document with the intention that if judge were to read it he/she would come to same conclusion you have. Document time, date, names of any witnesses of the event, and the response of the harasser (both body language and words). Hold onto that document and don’t let anyone know you are documenting everything.

4. Never say that you “don’t want to sue the company.” That is your personal private business. You may genuinely feel that way, and you may want to “be nice” and handle the situation as professionally as possible, but when you say something like that you are tipping your hand and telling the company not to take you seriously. That can be dangerous.

5. If you can do so safely, try to to document at least three instances before you go to Human Resources or another supervisor to file your complaint. This will show an established pattern of behavior and an all-important timeline. An established timeline has a much better chance of forcing the company to act on your behalf, rather than protecting the harasser and/or the company (from a potential lawsuit, and/or bad PR). Filing on one isolated incident is not as safe as establishing a pattern of behavior that you’ve addressed directly and not been able fix.

6. Research a lawyer and choose one just in case you need one. I recommend using NELA.org to find a lawyer in your area. NELA is comprised of lawyers who represent workers in labor, employment and civil rights disputes, and advancing employee rights. You may want to consult with a lawyer before submitting your documentation to Human Resources.

7. Take your documentation to human resources or union representative. If you do not have a Human Resources department or Union Representative, take it to another manager or supervisor (not the harasser). The company will typically launch a formal investigation, interviewing you and the accused harasser and will make their findings available, along with any recommended action to be taken. If at any point you feel that the company is not taking your claims seriously, or siding with the harasser, call that lawyer.

When do you skip these steps? If the incident in question has created an imminent safety issue, or was one of actual physical sexual assault, you should obviously not wait for three occurrences. Document the event that occurred to your best recollection, and take action. If you feel your safety is in jeopardy (or has been violated) you should act immediately. Physical safety and security is always paramount.

Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favors. In most modern legal contexts, sexual harassment is illegal. As defined by the U.S. Equal Employment Opportunity Commission (EEOC), "It is unlawful to harass a person (an applicant or employee) because of that person's sex." Harassment can include "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. The legal definition of sexual harassment varies by jurisdiction. Sexual harassment laws generally do not prohibit simple teasing, offhand comments, or minor isolated incidents — that is, they do not impose a "general civility code."

In the workplace, harassment may be considered illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted, or when the victim decides to quit the job). The legal and social understanding of sexual harassment, however, varies by culture.

In the context of U.S. employment, the harasser can be a victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer, and harassers or victims can be of both genders.

It includes a range of actions from mild transgressions to sexual abuse or sexual assault. Sexual harassment is a form of illegal employment discrimination and a form of abuse (sexual and psychological) and bullying. For many businesses or organizations, preventing sexual harassment, and defending employees from sexual harassment charges, have become key goals of legal decision-making.

The opinions expressed by Cynthia Shapiro in this column are hers alone and do not reflect the views of ABC News.