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Job Survival Sexual Harassment - Practical Tips

Clark Law Group

Zuckerman Law

PLEASE NOTE: You may never have to bring a lawsuit on any of the matters discussed in this section, but you should be aware that there are deadlines for doing so. Those deadlines run from the date of the harassment, regardless of whether you complain and/or whether the company tries to resolve the issue internally. See our site's main sexual harassment page for more information.

This page provides answers to the following questions:

1. My coworker brings a sexually graphic magazine to work every month, and all the guys gather around his desk to look at it. Although I haven't seen what's inside the magazine, it bothers me that he does this. Is there anything I can do?

2. I am very uncomfortable at the public displays of affection of coworkers who are having an affair. Is there anything I can do about it?

3. My supervisor keeps brushing against me "accidentally" and giving me suggestive looks. I don't want to bring a lawsuit—I just want it to stop. What do I do?

4. I have been the focus of suggestively sexual attention by my supervisor. I really like him and like my job, but want his behavior toward me to cease. What should I do?

5. There is a guy at work who is hitting on me and he seems a little crazy. I am worried about how he will react if I report him. What should I do?

6. I can see that a high level supervisor is now doing to a young coworker what he used to do to me: excessive compliments, "accidental" touching and the like. When he did it to me, I didn't go to HR; I just told him to buzz off, which he did. She seems too timid to do the same. Should I report it to HR?

7. I cannot help but see and overhear a supervisor who is using offensive and sexually suggestive language as he tries to persuade my coworker to have sex with him. I find the language offensive, and I also think he is pressuring her. Can I do anything about it, or does she have to complain?

8. I had a relationship with my boss for a while, but it's over. I have asked him to leave me alone, but he keeps trying to get me to go out with him again. What do I do now?

9. I am very careful not to engage in sexual or suggestive banter at work, but do the same rules apply when I see coworkers outside of work?

10. I have previously had several consensual sexual relationships with people with whom I work. Now I am being pursued by a supervisor in whom I have no interest and he will not take no for an answer. I am worried that my past actions might make it hard now for me to make a complaint stick. What should I do?

11. My company has a policy forbidding dating between employees if one has any supervisory authority over the other. There is a coworker who has asked me out and I would like to go, but if I do, will that mean I cannot get the promotion I am seeking that would make me his boss?

12. The woman in HR seems to be on my side in a situation with my boss. Can I trust her with confidential information I don't want her to reveal?

13. The person to whom I am supposed to report harassment is the person who is harassing me! Obviously, reporting it to him isn't going to do any good. What do I do?

14. Over the years I have pretended not to be offended by the gross language and anti-female epithets in my workplace. I actually hate it and I am offended by it. Is it too late now to complain?

15. I think I am being sexually harassed. Should I keep a diary?

16. After I was harassed, I complained to the company and it didn't do anything. I'm still being harassed by my supervisor. What do I do now?

17. After I was harassed, I complained to the company, and it agreed to investigate. The company didn't talk to any of the witnesses I suggested, and now I've been told there is no evidence of harassment. What do I do now?

18. After I was harassed, I complained to the company. I asked that my complaint be kept confidential, because I didn't intend to pursue it any further. However, the company obviously disclosed my complaint to the harasser and several co-workers and they are now angry and hostile towards me. What do I do now?

19. After I was harassed, I complained to the company. The person harassing me stopped, but now I have to work with her everyday, and it makes me very uncomfortable. I have asked the company to transfer one of us, but it refuses. What do I do now?

20. I complained about harassment and the company offered to transfer me. I didn't do anything wrong. Why should I be transferred?

21. Once an investigation is completed, what right do I have to see the results of the investigation? Do I have the right to see whether there is anything in my personnel file of these matters?

22. I complained to HR about a sexually harassing incident and now the company is bringing in outside investigators to interview me and several other people. I wish I had never started this. What can I do to stop it?

23. What are my rights in a sexual harassment investigation? If I am interviewed and the interviewer is rude or intimidating, do I have to stay?

24. If I am interviewed in a sexual harassment investigation, do I have the right to the interviewer's notes? Do I have the right to record it? Do I have the right to have a friend present, just as a second set of ears? Do I have the right to have a lawyer present?

25. I have felt very stressed out about the conduct of my boss, which I think might be sexual harassment. Should I see a therapist?

26. The company has offered to refer me to a psychotherapist for the stress the harassment has caused me and to pay the bill. Should I take them up on it?

27. I am about to see a psychotherapist on account of the stresses of the sexual harassment. Like everyone, I also have other stresses and issues in my life, which I would discuss with the therapist. I have heard that if I get into a lawsuit over the harassment, my therapist might have to turn over all of her notes and not just the parts about the harassment. Is that true?

28. I suspect the supervisor who is hitting on me has done it to others and I have no confidence that my employer will conduct an honest and thorough investigation of my claim or his history. Is there any reason I should not conduct my own investigation?

29. Is there any law against my recording some of this stuff just in case I need proof some day? May I make and keep copies of incriminating emails?

30. I've been falsely accused of sexual harassment by an employee I supervise, because she didn't get her raise this year due to poor performance. She claims it happened when no one else was around, so it's a "he said, she said" situation. Now other people in the company have heard the rumors and it's an uncomfortable situation, and I fear I might lose my job. What do I do?

1. My coworker brings a sexually graphic magazine to work every month, and all the guys gather around his desk to look at it. Although I haven't seen what's inside the magazine, it bothers me that he does this. Is there anything I can do?

While this conduct may offend you, it may not be considered against the law; courts have generally declined to establish a "code of conduct" or make all conduct of a sexual nature in the workplace illegal. The answer might be different if your coworker posted photos from the magazine in a common area where everyone could see or that could not be avoided in the course of your work day, since that would more directly affect your work environment by forcing you to view sexually graphic material against your will.

If you have told your coworker that you find it offensive, and the situation continues, you may wish to discuss it with a coworker, supervisor, or HR to determine whether others are offended, or whether your company has a policy that would be violated by this behavior. Perhaps a solution can be reached that does not involve filing a formal complaint or lawsuit.

2. I am very uncomfortable at the public displays of affection of coworkers who are having an affair. Is there anything I can do about it?

If the displays are "public," you must not be the only one seeing them. If no one else is bothered by it, consider whether you are overreacting. If the "public displays" are sexual, they might cross a line into "hostile environment" territory. If you can't speak to the people involved, you should seek the advice of a supervisor or the HR department.

3. My supervisor keeps brushing against me "accidentally" and giving me suggestive looks. I don't want to bring a lawsuit—I just want it to stop. What do I do?

Since one of the legal requirements for sexual harassment is that the conduct be "unwelcome," make sure your supervisor knows that you consider his or her conduct to be unwelcome. Don't rely upon subtle signals—tell him (or her) you are not interested in any relationship other than a professional one. And don't give mixed signals, such as flirting or engaging in conversation about personal matters.

If this doesn't work, you should talk to HR or some other department or person within your organization who has the power to stop the harassment.

4. I have been the focus of suggestively sexual attention by my supervisor. I really like him and like my job, but want his behavior toward me to cease. What should I do?

Telling him that you do not want to participate in his behavior and you are there to work, not to engage in sexual banter, may solve the problem. Here are some other suggestions, which while seeming to be humorous, may do the trick:

Pretending to be shocked: Your face registers shock, dismay or disgust, along with a stiff "I beg your pardon," or quizzical "Excuse me?"

Using humor to diffuse the situation: Ask questions like, "Are you sexually harassing me again?" "Is this a test to see how I handle sexual harassment?" or say, "Here you go sexually harassing me again."

Appearing confused: After an offensive double entendre or crude joke, pretend to be confused or not to understand what the harasser intended, asking "What does that mean? I donít understand."

The harassment notebook or research project: After an offensive remark or course of conduct, pull out a notebook and start writing down the information. (You can even label the notebook "sexual harassment.") Tell the harasser youíre doing a research project on harassment, and ask the harasser questions about the conduct such as, "How do you choose people to harass?" or "Do you discuss this with your girlfriend or your mother?"

If your approach has not been successful, write to him and tell him that he is on notice that his behavior will be reported the next time to human resources. You want to maintain a professional relationship with him and do not want to take this step, but his conduct alone will determine if you need to do so. Itís a good idea to send the letter certified mail, so that you know it was received.

5. There is a guy at work who is hitting on me and he seems a little crazy. I am worried about how he will react if I report him. What should I do?

Don't count on him understanding any subtle signs of lack of interest—make it clear and explicit. Make sure you are not overreacting but if you feel endangered, err on the side of safety and report it to HR or even the police.

6. I can see that a high level supervisor is now doing to a young coworker what he used to do to me: excessive compliments, "accidental" touching and the like. When he did it to me, I didn't go to HR; I just told him to buzz off, which he did. She seems too timid to do the same. Should I report it to HR?

This presents a complicated set of interests—yours, hers, the supervisor's and the company's. First, you cannot be sure that the attention he is paying to her is unwelcome. Second, she is a grown-up and your intervention or protection might not be appreciated. Third, however, if he is a serial harasser, the company surely wants and needs to know, and, if you have any supervisory or managerial authority, you might have an obligation to take appropriate action based on what you know. You might consider speaking to someone in a position of authority for advice, even if you describe the facts without naming anyone.

7. I cannot help but see and overhear a supervisor who is using offensive and sexually suggestive language as he tries to persuade my coworker to have sex with him. I find the language offensive, and I also think he is pressuring her. Can I do anything about it, or does she have to complain?

Even if the sexually suggestive language is not directed at you, if you are required to listen to it in your work environment, it may amount to a hostile work environment for you. You can complain just as if the language were directed at you. However, you do not have the right to complain that he is pressuring her. Only she can do that. See also question 5.

8. I had a relationship with my boss for a while, but it's over. I have asked him to leave me alone, but he keeps trying to get me to go out with him again. What do I do now?

Make sure he knows that his conduct is unwelcome. Tell him so explicitly. Firmly refuse all invitations for dates or other personal interaction outside of work. Don't engage in sexual banter or otherwise send any mixed signals. Direct communication, whether verbal or in writing, is better than ignoring the behavior and hoping it will go away.

Getting him to stop may be the easy part. The hard part is how he handles the rejection. If he is offended and retaliates against you, you could be left with the very difficult task of trying to prove that it was your rejection that motivated him. As hard as this is under ordinary circumstances, it is even harder (but not impossible) where there was once a consensual relationship. Fact-finders tend to suspect that this is more of a "lover's quarrel" than a real workplace injustice. This is another good reason for not having an affair with your boss.

9. I am very careful not to engage in sexual or suggestive banter at work, but do the same rules apply when I see coworkers outside of work?

Technically, no, but that is no guarantee that people with whom you work might not use your behavior outside of work to bolster a claim of work-related inappropriate behavior. Whenever you are interacting with people with whom you work, no matter where, there is the possibility that their version of your behavior may be used in a way that you never imagined or intended.

10. I have previously had several consensual sexual relationships with people with whom I work. Now I am being pursued by a supervisor in whom I have no interest and he will not take no for an answer. I am worried that my past actions might make it hard now for me to make a complaint stick. What should I do?

You are right to be concerned. If you have welcomed the sexual advances of others in the workplace, the supervisor may actually believe that you welcome his advances. This may also cause HR to doubt your claim that you did not. You may have to take extra steps to make it clear that his attentions are unwelcome. Consider documenting it in an e-mail or some other permanent record. Tell him that you will not hesitate to report him if he continues his pursuit, and then, if he does not heed your warning, report him.

11. My company has a policy forbidding dating between employees if one has any supervisory authority over the other. There is a coworker who has asked me out and I would like to go, but if I do, will that mean I cannot get the promotion I am seeking that would make me his boss?

You would think that whom you date on your own time is none of the employer's business. In fact, some company policies that attempt to regulate the non-work behavior of employees have been declared by courts to go too far and to unduly interfere with the employee's private life. However, if a policy bears some reasonable relationship to the company's legitimate interest, even though it also affects the employee's non-work life, it is likely to be enforceable, which means if you violate it, you can be disciplined or discharged.

When it comes to dating among employees between whom there is a supervisory relationship, the company's interest is obvious: other employees may feel -- correctly or not -- that the personal relationship will lead to favoritism in work-related matters. This interest may continue to exist even if a personal relationship that once existed has ended. So, you should think now about which you want more: to date this person now, or to be eligible for the promotion in the future.

This is not to say that all anti-dating policies are legitimate and enforceable. They come in many different forms, and some may go beyond any legitimate interest of the employer and even violate the law or the public policy of your state. This might be the case for a policy that forbids all fraternization no matter what the reporting relationship of the employees involved. In addition, if a legitimate policy is selectively enforced, you should consider whether the reason for the selectiveness is an illegal one. Is the rule more harshly applied to people of a particular gender or race? Is it used to retaliate? If so, even a rule that seems legitimate on its face may nevertheless provide a claim of illegal action.

12. The woman in HR seems to be on my side in a situation with my boss. Can I trust her with confidential information I don't want her to reveal?

Don't ever forget who signs her paycheck. Her duty of loyalty is to the company, not to you. Furthermore, companies have the legal obligation to act on the information they receive. Whether HR says so or not, they cannot guarantee absolute confidentiality, and, in light of this fact, you should realize that what you tell HR is not necessarily a protected and confidential communication.

13. The person to whom I am supposed to report harassment is the person who is harassing me! Obviously, reporting it to him isn't going to do any good. What do I do?

If your employer's complaint procedure instructs employees to report harassment only to their immediate supervisors, it may be legally inadequate, because it doesn't adequately address situations where the supervisor is the one committing harassment or may not be impartial. Employers are generally advised to designate at least one official outside an employee's chain of command to take complaints, to ensure that the complaint will be handled impartially.

You should first find out whether someone other than your supervisor has been designated to accept complaints. If so, then you should report your harassment complaint to that person, and explain why you were unable to report your complaint to your supervisor. If not, you should register your complaint with someone who is higher than your supervisor in the chain of command, and also explain while doing so why you were unable to report your complaint to your supervisor. It is generally a good idea, and especially in this situation, to report your complaint in writing, so that the company has a written record of your complaint.

14. Over the years I have pretended not to be offended by the gross language and anti-female epithets in my workplace. I actually hate it and I am offended by it. Is it too late now to complain?

No, it is never too late. Complain just as you would if it were happening for the first time. If you are asked, "Why now?" you could say, truthfully, that you have been offended for years and you will no longer pretend otherwise.

15. I think I am being sexually harassed. Should I keep a diary?

You can and should record, in a neutral manner, the places, dates, times and conduct. You can record how you feel about the conduct, but do not use profanity about the abuser. This document may become an exhibit some day in litigation, so be prepared to produce this document later.

If you have sought legal counsel who has advised you to keep this record, you can protect its confidentiality by referencing it as an attorney client communication. Keep this document at your residence and not on the company computer. You could consider carrying a small notebook with you to jot down events as they occur.

16. After I was harassed, I complained to the company and it didn't do anything. I'm still being harassed by my supervisor. What do I do now?

If the prior complaint was not investigated at all, return to the person or department to whom you previously complained and find out why your complaint was not investigated. Be sure to provide information about the new harassment that was not part of the previous complaint. Make it clear that you expect the company to investigate your complaint.

If the prior complaint was investigated, but nothing was done to the harasser, find out why. Was it because an investigation did not turn up sufficient proof? If so, find out (either from the company or other witnesses to the harassment) whether other employees were interviewed, and what information (if any) the company is willing to disclose about what it learned in the investigation. Perhaps your witnesses were fearful for their jobs and did not back you up, or the company did not do a thorough investigation. Some companies take the position that disciplinary matters are confidential, and even though discipline was taken, the company will not tell you what happened. However, if you are still being harassed, you should make the point that the action taken was not effective to prevent the harassment from happening again, and that a stronger deterrent is necessary. You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

17. After I was harassed, I complained to the company, and it agreed to investigate. The company didn't talk to any of the witnesses I suggested, and now I've been told there is no evidence of harassment. What do I do now?

Has the harassment stopped? If so, perhaps the threat of the investigation itself has been sufficient to deter your harasser from further harassing conduct. You still may be able to file a legal claim, based on what happened prior to the investigation, but it may be an uphill battle proving harassment, since the company's actions may not appear to be unreasonable.

However, if the harassment has not stopped, then you may be able to prove that the company's investigation was inadequate and not sufficient to deter future harassment. You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

18. After I was harassed, I complained to the company. I asked that my complaint be kept confidential, because I didn't intend to pursue it any further. However, the company obviously disclosed my complaint to the harasser and several co-workers and they are now angry and hostile towards me. What do I do now?

Your employer should have made clear to you that it could not guarantee confidentiality. In fact, it may be impossible to conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses.

You need not be at the mercy of angry coworkers. You should report the behavior to HR or whoever has the authority to step in and stop it. If the employer does not take appropriate corrective action, it can be liable to you for retaliation. You may also want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened.

19. After I was harassed, I complained to the company. The person harassing me stopped, but now I have to work with her everyday, and it makes me very uncomfortable. I have asked the company to transfer one of us, but it refuses. What do I do now?

If the harassment has stopped, the company probably has no legal obligation other than to ensure that there is no retaliation. As a practical matter, your discomfort should be reason enough to transfer you, and you might have some success if you try to find a sympathetic and effective supervisor to help you got a transfer. However, the company may have its reasons and you should find out what they are in order to try to rebut them. Perhaps it fears that acceding to your transfer request will invite a future retaliation claims. Perhaps there is no logical transfer slot available. You may want to consult with an attorney at this point to determine whether you have a legal claim based on what has happened, or whether there are any other ways you may be able to obtain a transfer.

20. I complained about harassment and the company offered to transfer me. I didn't do anything wrong. Why should I be transferred?

That is a very good question. You undoubtedly construe the move as a form of retaliation and you should say so. However, it is a fact of life that the lower-ranked person is almost always the one who is moved, especially where the complaint is unsubstantiated and amounts to a "he said, she said" which no one can prove or disprove. The company will argue that it is fulfilling its responsibilities by separating you from the person who has made you uncomfortable, and will be shocked that you are not grateful. Your ability successfully to resist and make them move the harasser instead of you is a matter of leverage and your own powers of persuasion. You may want to consult an attorney to explore whether you have a viable retaliation claim.

21. Once an investigation is completed, what right do I have to see the results of the investigation? Do I have the right to see whether there is anything in my personnel file of these matters?

You do not have any "rights" in this regard, but, again, you, or your lawyer if you have one, may persuade the company to give them to you. If there is ever a lawsuit concerning the harassment, the employer may then have to turn over all or part of its investigative file.

22. I complained to HR about a sexually harassing incident and now the company is bringing in outside investigators to interview me and several other people. I wish I had never started this. What can I do to stop it?

You probably can't. The overreaction of some companies to such charges may be more a result of their fear of liability rather than genuine concern for equality in the workplace. Furthermore, once the employer's investigators are on the trail, your refusal to cooperate can get you in trouble. You can try pointing out to the company the negative effects of overreaction and they might even listen to you.

23. What are my rights in a sexual harassment investigation? If I am interviewed and the interviewer is rude or intimidating, do I have to stay?

You don't have to take rude and intimidating behavior from an investigator any more than from any other person in the company. If the interviewer is behaving inappropriately, you should stop the interview and report the behavior, and perhaps demand that someone accompany you as a condition of continuing the interview.

24. If I am interviewed in a sexual harassment investigation, do I have the right to the interviewer's notes? Do I have the right to record it? Do I have the right to have a friend present, just as a second set of ears? Do I have the right to have a lawyer present?

You do not have the "right" to any of these things, but you may get them just by asking for them or by having a lawyer ask for them on your behalf. You do have an obligation to answer the employer's legitimate questions and your refusal to do so could be grounds for discipline or discharge. As for recording, it depends on your state whether it is legal to record surreptitiously a face-to-face interview or telephone conversation. For more information, see this resource: "Can We Tape?". As for the investigative notes, see question 16.

25. I have felt very stressed out about the conduct of my boss, which I think might be sexual harassment. Should I see a therapist?

Mental health is one aspect of overall health and if the situation is affecting your ability to cope, then you should seek professional counseling. Whether your communications with your therapist may some day be subject to discovery in litigation is a complex question.

In certain instances, the communications to your therapist may be given to your employer during litigation. If your communications to your therapist are all about how your relationships with your significant other and family members distress you but your work environment is fine, such information will be used against you in the event this information is given to the opposing party during a lawsuit.

26. The company has offered to refer me to a psychotherapist for the stress the harassment has caused me and to pay the bill. Should I take them up on it?

Make sure the psychotherapist is independent and not in any way loyal to the company or a person in the company. You can find this out only by asking questions on your first visit. If you have any concerns about his or her independence, avoid the relationship.

27. I am about to see a psychotherapist on account of the stresses of the sexual harassment. Like everyone, I also have other stresses and issues in my life, which I would discuss with the therapist. I have heard that if I get into a lawsuit over the harassment, my therapist might have to turn over all of her notes and not just the parts about the harassment. Is that true?

Yes, it is true. Your lawyer might be able to avoid this result, but there is certainly possible that everything you tell the therapist will be revealed in the course of litigation. This is a factor for you to weigh carefully and discuss thoroughly with your lawyer in making decisions about therapy and litigation.

28. I suspect the supervisor who is hitting on me has done it to others and I have no confidence that my employer will conduct an honest and thorough investigation of my claim or his history. Is there any reason I should not conduct my own investigation?

If you mean by "investigation" asking questions of coworkers and former workers to get information about the suspected harasser, this is not illegal so long as your methods are legal. However, don't expect much cooperation from others, especially current employees. In addition, be prepared for a strong and negative reaction from the employer, who may view your efforts as disruptive or worse. In any event, be mindful of the fact that if you try to do this on company time or if you interfere with the work of your coworkers, you may subject yourself to discipline by your employer.

29. Is there any law against my recording some of this stuff just in case I need proof some day? May I make and keep copies of incriminating emails?

There are legal restrictions on surreptitious recording of telephone conversations. You must consult the law of your state. There are fewer legal restrictions on secretly recording a face-to-face conversation (but you should still consult the law of your state), although the motives and good faith of one who secretly records conversations with others may be called into question. As for e-mails, there may be complicated questions of unauthorized taking of company property, so consult a lawyer before you make and keep copies of anything that you do not properly possess.

30. I've been falsely accused of sexual harassment by an employee I supervise, because she didn't get her raise this year due to poor performance. She claims it happened when no one else was around, so it's a "he said, she said" situation. Now other people in the company have heard the rumors and it's an uncomfortable situation, and I fear I might lose my job. What do I do?

The employer has the obligation to investigate harassment complaints. See our site's main sexual harassment page for further information. You may feel that these guidelines for investigation favor the person complaining of harassment. However, companies face substantial financial liability on account of these charges and their ability to escape liability depends in large part on the nature of their investigation.

For the protection of both the person who complains and the person accused of harassment, information about the allegations and any records of the complaint of harassment against you should be shared only with those who need to know about it. You should seek assurances from your employer that it will keep information about the complaint confidential, and will ask all participants in the investigation process to do so as well.

You should also be aware that some companies, in an effort to reduce and/or prevent lawsuits, have adopted a "zero tolerance" policy where sexual harassment is concerned, which has led to employees being disciplined or terminated for conduct that was previously tolerated at work. So it is probably wise to realistically assess your conduct to determine whether the complaint may have any merit at all, even if some allegations are either untrue or cannot be proven. Even if your conduct does not get you in trouble this time, it may in the future.

You may also want to consult with an attorney at this point to discuss your participation in the investigation, and to determine whether you have any legal remedies in the event that the company does take any action against you for harassment.


REMINDER: You may never have to bring a lawsuit on any of the matters discussed in this section, but you should be aware that there are deadlines for doing so. Those deadlines run from the date of the harassment, regardless of whether you complain and/or whether the company tries to resolve the issue internally. See our site's main sexual harassment page for more information.

This page was updated on October 24, 2006

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