There are many reasons why an employee would not – or hesitate to – report sexual harassment or assault in the workplace. We are not here to judge anyone who has decided not to complain. However, from an employment law standpoint, sometimes, in order to have recourse in the courts, a complaint should be made. This article will talk about how to make a complaint of harassment.
By way of legal context, an employer is generally going to be responsible for sexual harassment perpetrated by the boss. If, however, the harasser is a coworker, the law is going to need a reason to blame the employer. Did the employer know about the harassment and do nothing? Did the employer have no complaint procedures available? If the answer to either of those questions is yes, then we may be able to blame the employer for the acts of its employees. If, however, the employer had available avenues of complaint and didn't know about the harassment, it may have a defense.
So, particularly where the harasser is a coworker, we encourage employees to make complaints of harassment. Not only will a complaint put you on more solid legal footing, but it will also give the employer the opportunity to make things right. Of course, often that doesn't happen, but the law likes us to give the employer the chance to do the right thing.
Check Your Employee Handbook
The first step in making a complaint of harassment is to check your employee handbook or harassment policy. Most larger and municipal employers should have some kind of complaint procedure to follow, designating an individual to whom a complaint should be directed, usually a Human Resources representative. Large companies may have these procedures online. If your company does have a complaint procedure, you should follow it to the best of your ability.
Some companies also have anonymous complaint hotlines. You can read more about those here.
What if I Don't Have an Employee Handbook?
If you don't have a handbook or written policy, report the harassment to Human Resources. If your company does not have an HR department, make the complaint to your boss or supervisor.
Make the Complaint Even if There Were Witnesses
The sad reality is that your coworkers may not vouch for you in the long run. Even if harassment is witnessed, particularly if the only witnesses are coworkers and not higher ups who have authority to do anything about it, you should make a complaint. Do not rely on witnesses to complain on your behalf. Coworkers are often hesitant to rock the boat or put their own jobs in jeopardy even if they know something is wrong. And coworkers witnessing something is not the same as the “employer” knowing about it, from a legal standpoint. You want to make sure someone who actually has the responsibility and authority to do something about it knows.
Put it in Writing
Another sad reality is that, if there's no proof of the complaint, your employer will likely deny that it happened. So, we always suggest that complaints be made in writing or, if made verbally initially, memorialized in a writing or email.
Cooperate with the Investigation
Once you've made your complaint, ideally your employer will investigate it. This will likely require you to name the wrongdoers and any witnesses. At this point, some employees will balk at the thought of getting other people in trouble, being branded a complainer or trouble maker, or getting their coworkers involved. However, once you make a complaint, you have an obligation to cooperate. Otherwise, you may risk losing your job for failing to do so.
Who Else Can I Complain To?
In addition to complaining internally, you can consider making a complaint to the Equal Employment Opportunity Commission (EEOC) or the New York State Division of Human Rights (NYDHR). While an employer may still have a defense if it didn't know about the harassment, one of these complaints will be shared with the employer and serve that purpose moving forward. Individuals do make these kinds of complaints while they are still employed and, theoretically, these complaints are protected from retaliation.
When Do I Need to Complain to the EEOC or NYDHR to Preserve My Rights?
You should make a complaint to the EEOC or NYDHR if sexual harassment or discrimination has resulted in an adverse employment action. If you got fired, demoted, refused a promotion, or resigned because of harassment or discrimination, the clock is going to start ticking on a claim based on that event. Even if you are still employed and/or your employer is still investigating your complaint, if you want to preserve your rights based on an event that caused you damages (so, for example, you were denied a promotion because you refused to have sex with your supervisor), you need to file a charge within strict time deadlines running from the date of the event.
When Do I Need to Serve a Notice of Claim to Preserve My Rights?
If you work for a municipality or a school district, notice of claim requirements may also apply to you. A notice of claim must be served on the employer within strict time deadlines running from the date of the action you are complaining of.
What if the Investigation Rules Against Me?
Even if an investigation comes back with a finding that no harassment occurred, that doesn't mean you have no legal recourse. Ultimately, whether something is or is not illegal harassment or whether the employer did a thorough enough investigation or took appropriate remedial action is a question for the courts. So even if the outcome of an investigation is not in your favor, you should still speak to an attorney about your rights and make sure you preserve your rights by filing timely complaints with the EEOC or NYDHR, and serve a notice of claim if those requirements are applicable to you.
What if I'm Retaliated Against for Making the Complaint?
Good faith complaints of sexual harassment or discrimination are protected from retaliation by state and federal law. That doesn't mean, practically, that an employer won't retaliate against you, but, if you can prove that you were retaliated against for making a complaint, you have recourse in the courts.
Memorializing a complaint in writing is important in the event that you are retaliated against. Then you will, at the very least, be able to prove you made the complaint and demonstrate the timing between that complaint and any adverse employment action taken against you. If there is no documentation of the complaint, an employer will likely deny that it knew of a complaint and, in turn, take the position that it could not have retaliated against you for making it.
If you are being sexually harassed or have suffered an adverse employment action as a result of harassment or discrimination, contact us. We are happy to see if there is anything we can do.
*Nothing in this article should be relied on or construed as legal advice. Everyone's situation is different. If you feel you need legal assistance, contact an attorney or the EEOC or NYDHR prior to taking action. Representation by our firm only occurs after a fact specific analysis of your particular case and entry into a formal retainer agreement.