Most employers have a sexual harassment policy, which includes a reporting procedure. Nonetheless, many employees fail to report harassment either because it is uncomfortable; or because they fear retaliation from the harasser or the employer; or because they simply do not know how to go about doing it. You can help.
As Aaron Maduff explains in Litigating Sexual Harassment & Sex Discrimination Cases, helping your client report sexual harassment may help her resolve the situation internally and will strengthen her legal position should further action be necessary.
- Prepare a Written Complaint
The employer’s policy may provide for several ways to report sexual harassment, but preparing a written complaint is best because it creates a record that also can be used at trial. The complaint should include the specific words “sexual harassment,” in order to establish a legal basis for a retaliation claim, should that become necessary. Smart companies will be cautious about how an employee is treated after making a complaint of sexual harassment, but if retaliation does occur, using the specific words “sexual harassment” in the complaint will prevent the company from claiming your client did not engage in a “protected act.”
- Present the Complaint
The written complaint may be presented by you or your client. If your client presents the complaint, the best practice is to do so by email. Have your client send the complaint from a private email address to which she will always have access, even if she is terminated later, and to bcc you on the email. This way she will have proof the complaint was sent. If the complaint must be sent from a company email address, instruct your client to print a copy immediately and save it for her records.
If you present the complaint, be sure to identify yourself as an attorney and invite any response from the company’s legal counsel. As long as the complaint is directed to the proper individual, even if it invites participation by legal counsel, it generally will suffice to meet the employer’s internal reporting requirements.
- Prepare Your Client for the Investigative Interview
In most instances, the complaint will trigger an investigative interview. In anticipation of the interview, meet with your client and review this short list of “Do’s and Don’ts”:
DON’T get boxed into “solutions” proposed or requested by the company investigator.
If the question of remedies comes up, your client should turn the question back on the investigator. She should say, for example, “Well, I’m not certain what I want at this point. What are my available legal remedies?” If the company representative lies or fudges the answer, you can use this information to your advantage.
DON’T offer a benign “solution.”
Caution your client to avoid saying, for example, “I don’t want Charlie to lose his job,” or “All I want is fairness.” If the matter cannot be resolved internally and litigation ensues, the company inevitably will try to use these benign statements against your client, in an effort to demonstrate that the harassment was not egregious.
DO be prepared to describe the impact the harassment has had on your life.
Your client needs to be able to put her case in human terms for the investigator. Did the harassment cause her to lose sleep? Is she anxious about coming to work? Does she have trouble concentrating on her job duties? Is the stress creating tension at home, causing her to argue with her husband and snap at her children?
DO record the interview.
Instruct your client as follows: Place a recorder on the table, in plain sight, at the start of the interview; turn the recorder on and state:
“I am here for the investigative interview of my sexual harassment complaint. Today is [date], and I would like to record this meeting for my records. May I do so?”
If the investigator says no, your client should immediately turn off the recorder and put it away. You now have a recording of the company refusing to allow your client to record the interview. This may be quite useful if the company later claims your client did or did not make certain statements, because her credibility is improved by the fact that she tried to preserve a record, but the company blocked that effort. If the investigator agrees to the recording, but asks for a copy, your client should say yes. If the investigator also intends to record the interview, your client should ask for a copy of the investigator’s recording.
The written complaint and investigative interview are the first steps in resolving a claim of sexual harassment in the workplace. Litigating Sexual Harassment & Sex Discrimination Cases will prepare you for whatever comes next. Author Aaron B. Maduff offers practical advice gleaned from experience; practice-tested forms; and step-by-step instructions to help you navigate settlement negotiations and all phases of litigation and trial. The 2014-15 Edition is available now.
Aaron B. Maduff has more than 20 years’ experience as an employment and civil rights lawyer. He was first identified as a Super Lawyer by Chicago Magazine in 2007. He is Board Certified as a Specialist in Labor and Employment Law by the State of Ohio. Mr. Maduff has extensive trial and appellate experience in employment cases (overtime, FMLA, discrimination) and police misconduct cases. He frequently is called upon to prepare amicus briefs and has filed such briefs before the 7th Circuit Court of Appeals, the Illinois Supreme Court, and the Indiana Supreme Court, among others. Mr. Maduff is active in the legal community and is a frequent speaker and author on employment-related topics.