Chapter Four. Steps the Victim Can Take to Contend with Sexual Harassment
This chapter reviews both the legal and mental health care steps that a victim of sexual harassment should consider. The steps of telling the harasser to stop and reporting the incident to management are connected to the issue of proving that the harassing conduct is unwanted. The chapter concludes with Cases In Point that explain that even if a victim’s participation in a sexual episode is voluntary that does not necessarily mean the participation was welcome, as opposed to unwanted. Courts have considered a victim’s behavior and even the victim’s dress as relevant factors in the determination of whether the harasser’s conduct was welcome or unwelcome.
The primary legal steps to contend with harassment in the workplace include telling the harasser to stop, complaining to a supervisor or the Human Resources Department, consulting an attorney, filing a complaint with the EEOC and/or the DFEH, and ultimately filing a lawsuit for sexual harassment. Other steps a victim can take even before consulting an attorney are to find personal support, to get professional health care counseling to help to cope with the psychological impact of the harassment, and to document the incidents of harassment.
II. Know Your Rights
Using tools such as literature on sexual harassment and the advice of an attorney to understand what conduct constitutes sexual harassment is a powerful step in confirming a victim’s rights and can build confidence and assist in moving forward with the next steps in stopping the harassment.
III. Tell the Harasser to Stop
A victim of sexual harassment should clearly tell the harasser that his or her conduct is inappropriate and that they want the harassment to stop. If this does not work, or if the harassment victim feels too scared to verbally confront the harasser, the victim can write a letter telling the harasser to stop his or her misconduct. A victim can also have a third party tell the harasser to stop behaving inappropriately.
IV. Report the Incident to a Supervisor or to the Human Resources Department
A victim of sexual harassment should let a supervisor and/or the Human Resources Department know what is happening. The victim can tell the Human Resources Department what steps have already been taken to stop the harassment, and what they would like to see happen next.
A. Is a Sexual Harassment Victim Required to Make a Complaint to the Employer?
Although reporting the harassment is not a strict requirement for the victim in order to prevail in a lawsuit against the employer, a report puts the employer on notice to take steps to stop the harassment. Additionally, there are two key legal reasons why it is a good idea for victims to report sexual harassment. First, reporting the harassment to the employer can help to stop the defendant from lowering the victim’s damages at trial through the use of an avoidable consequences affirmative defense. When a victim does not report harassment in the workplace to the employer, the employer can bring the affirmative defense that the employer is not liable for damages that could have been avoided by the employer, if the victim had made a timely report of the harassment. (See detailed discussion on affirmative defenses in Section V of Chapter Five.)
Second, reporting the harassment can help to prove to the jury that the conduct of the harasser was unwanted and unwelcomed by the victim and that the harasser was on notice that the offensive behavior was unwanted.
V. Coping with the Stressful Effects of Sexual Harassment
There is no easy answer to how a victim of sexual harassment can best cope with the stressful effects of sexual harassment. Some victims will be hysterical, while others will go through denial and remain outwardly calm. Some struggle with asking themselves why they have been harassed and wonder if they did something to give the harasser the wrong impression. This may cause the victim to feel guilt, shame, or embarrassment. The victim may feel like the harassment is his or her fault, and this guilt and shame can make it even more difficult for a victim of sexual harassment to seek help or to report the harassment.
Victims of sexual harassment may be affected by the harassment in a number of debilitating ways. Different victims will react differently to sexual harassment. Some common effects of sexual harassment on victims include feelings of confusion, embarrassment, denial, fear, and numbness. The victim may suffer from depression, anxiety, traumatic stress, sleeplessness or nightmares, decreased ability to concentrate, headaches, fatigue, stomach problems, anger, withdrawal and isolation, or problems with intimacy.
At work, the victim may experience decreased work performance, increased absenteeism, defamation of character and reputation, and loss of recommendations as a result of the harassment.
These complex and troubling effects on victims of sexual harassment can be extremely difficult to deal with. Acknowledging emotional hardships can be an effective first step for victims to gradually heal. Victims will need time and support to recover from their emotional injuries.
It can also help the victim to confide in a trusted friend or family member. Confiding in friends and/or family members can serve both to help emotionally by lifting a victim’s spirits and also to help prove damages in litigation for the sexual harassment. Sometimes friends and family members act as witnesses at trial to testify about the harm the harassment caused the victim.
The California Supreme Court has noted that stressful effects of sexual harassment may hinder a victim from reporting the harassment, and stated that the sexual harassment victim’s actions need only be “reasonable.” The California Supreme Court explained:
We stress also that the holding we adopt does not demand or expect that employees victimized by a supervisor’s sexual harassment must always report such conduct immediately to the employer through internal grievance mechanisms. … the employee may reasonably fear reprisal from the harassing supervisor or other employees. Moreover, in some cases an employee’s natural feelings of embarrassment, humiliation, and shame may provide a sufficient excuse for delay in reporting acts of sexual harassment by a supervisor.
VI. Seek Professional Medical Help
Victims of sexual harassment should seek professional help from a psychiatrist or psychologist to cope with their problems and to deal with managing the emotional distress they face as a result of the sexual harassment.
If a victim of sexual harassment does seek help from a mental health care practitioner, the treating mental health care practitioner may later testify as a witness about the effects of the sexual harassment on the victim. While seeking the counsel of any mental health care practitioner can be helpful to a victim of sexual harassment, a psychiatrist is an actual doctor that has been through medical school, and therefore has more credentials as a witness in the victim’s sexual harassment lawsuit. A victim should consider seeking professional help from a psychiatrist or psychologist to get treatment for the debilitating and stressful physical and emotional effects of sexual harassment as soon as possible after the harassment.
The mental health care records of the victim may be discoverable by the attorney for the employer in a sexual harassment lawsuit. (See the discussion of emotional distress and discovery in Section III (A) of Chapter Seven.)
VII. Document the Harassment
As the harassment occurs, it can be helpful in later litigation to have a written account of each incident of harassment that took place, including what was said or done, the date, time, and place of the incident, who else was there, as well as what impact the incident had on the victim’s emotions, health, personal relationships, and work duties.
As part of documenting the harassment, make sure to save any memos, letters or emails that are related to the harassment, but be careful not to violate the employer’s confidentiality and proprietary information guidelines.
Also make sure to document all negative actions, and not just the harassing conduct. For example, keep track of any performance reviews, demotions, position title changes, or similar events.
VIII. Proving the Harassing Conduct was Unwanted
In order to prove a case of sexual harassment, whether quid pro quo harassment or hostile work environment harassment, the plaintiff must show that the harasser’s conduct was unwanted.
In addition to overcoming the defendant’s affirmative defense for avoidable consequences, reporting harassing conduct to the employer will also help to prove that the actions taken by the harasser were indeed unwanted and unwelcome.
CASE IN POINT: Even If Victim’s Conduct was Voluntary, This Does Not Mean the Advances Were Welcome
In Meritor Savings Bank, FSB v. Vinson, the United States Supreme Court examined whether voluntary sexual intercourse could be considered an “unwelcome” sexual advance, and found that it could. The Court explained:
The fact that sex-related conduct was “voluntary,” in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were “unwelcome.” … While the question whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact, the District Court in this case erroneously focused on the “voluntariness” of respondent’s participation in the claimed sexual episodes. The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.
CASE IN POINT: Victim’s Dress and Behavior Relevant to Determination of Whether Advances Were Unwanted
The admissibility a victim’s dress and speech in a sexual harassment case was also considered in Meritor Savings Bank, FSB v. Vinson. In Vinson, the United States Supreme Court determined that a victim’s dress and behavior are relevant to the determination of whether the harasser’s conduct was unwelcome, but noted that it is up to the trial court to determine whether evidence is admissible on a case-by-case basis.
The Court explained:
While “voluntariness” in the sense of consent is not a defense to such a sexual harassment claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant. The EEOC Guidelines emphasize that the trier of fact must determine the existence of sexual harassment in light of “the record as a whole” and “the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.” …
Respondent’s claim that any marginal relevance of the evidence in question was outweighed by the potential for unfair prejudice is the sort of argument properly addressed to the District Court. … While the District Court must carefully weigh the applicable considerations in deciding whether to admit evidence of this kind, there is no per se rule against its admissibility.”
As you can see, it is important, but not necessarily essential, that the victim tell the harasser to stop and report the incident to a supervisor or to the Human Resources Department. Filing an administrative complaint with the California DFEH or the federal EEOC is a legally necessary step before one is entitled to bring a lawsuit for sexual harassment in court.
An often overlooked step a victim should take is to find personal support and to seek out the appropriate professional mental health care counseling, not only to treat the typical depression and shame issues associated with sexual harassment, but also to document the victim’s trauma as a result of the harassment.
Consent to sexual advances or sexual conduct is not the equivalent of welcoming the conduct. A victim can consent to sexual conduct, even when the conduct is “unwelcome” under the sexual harassment statutes. Voluntary adult sexual conduct is not the equivalent of “welcome” sexual conduct under Title VII and FEHA. For example, in the context of quid pro quo sexual harassment, where a supervisor typically demands sexual favors in exchange for workplace advancement or under the threat of adverse employment consequences, if the victim consents to a sexual act under pressure of employment consequences, the sexual act is not necessarily “welcome” under Title VII and FEHA. Although consent to sex or sexual behavior may still constitute unwelcome sexual harassment, the victim faces practical problems of proof to convince the trier of fact that the sexual behavior was unwanted.