Former Fox News anchor Gretchen Carlson sued her old boss, Roger Ailes this week, alleging that he had sexually harassed her and that after she consistently rebuffed his advances, her contract was not renewed. Mr. Ailes denies the charges.
Ms. Carlson is obviously an intelligent, successful woman, bold enough to publicly take on probably the most powerful man in American media. Yet she’s already made some mistakes – mistakes that employees commonly make when confronted with workplace abuses.
Over 30 years of representing sexually harassed employees, I’ve often had to jump over hurdles my own clients unintentionally created for me because they didn’t know how to handle the demeaning behavior they experienced in their workplace. It’s not their fault. No one should be sexually harassed. It ruins careers, shatters psyches, even harms physical health from stress-related ailments. It should not be up to the victim to properly handle herself (while I’ve represented sexually harassed men, most victims are women). It’s on the harassers – who are usually managers and bosses – to knock it off.
I can’t turn back the clock for workers have already made some big mistakes. But for everyone else, here are the top five doozies to avoid if you are facing workplace harassment:
Mistake #1. Playing along.
Bobby Boss says to Suzy Subordinate, “It’s hot in here. Why don’t you unbutton your blouse a little?” Suzy, flustered, says, “why don’t you unbutton your pants?” Bobby grins and high fives her. She immediately regrets it. The next day, Bobby comes to her work station and massages her shoulders, telling her she’s tense and needs to relax. “Oh, um, yeah,” she says, smiling. Inside, though, her stomach is in knots.
Bobby’s behavior clearly constitutes improper workplace behavior, but for it to constitute illegal sexual harassment, the behavior must be “unwelcome.” In Suzy’s subsequent sexual harassment case, Bobby and any witnesses will testify that Suzy seemed to enjoy his behavior, and in fact “gave as good as she got.” (That’s a popular phrase with defendants.)
In my office, my “Suzy” clients will say, “but he’s the boss!” “I didn’t want to offend him!” “I was shocked and didn’t know what to say!” All of that is true. But the better course would have been to say nothing. Under no circumstances should an employee who is subjected to unwanted advances pretend she likes it. She should not fire back her own off-color comments. And ideally, she should complain, which brings me to my next point.
Mistake #2. Waiting until you’re fired to speak out.
Nobody enjoys complaining about the boss, or even an obnoxious co-worker. But when it comes to sexual harassment, you must.
Here’s what I see often: Edna Employee keeps her mouth shut, enduring the comments—even the groping—terrified she’ll lose her job. Harry Harasser, emboldened, escalates the harassment until one day he grabs her breast or propositions her or otherwise crosses the line so badly she feels forced into a corner, and tells Harry off. With no witnesses around. Edna goes home and sulks. Thereafter, Edna is fired.
She comes to my office, and we take her case. But when her complaint is filed, Harry and the company will say she was fired based on poor work performance (they can always find something), that she’s now a “disgruntled former employee,” and if the harassment was so bad, why didn’t she complain about it sooner?
Company manuals, which nearly everyone is made to sign these days, often state that if there is a workplace problem the Ednas of the world are required to report it in writing so the company can take action. She can still sue, but jurors will wonder why she didn’t speak up sooner if it was so terrible.
Even Gretchen Carlson does not allege in her complaint that she complained about Mr. Ailes internally before her contract was terminated – and I would expect to see that if she had. Now, of course, Mr. Ailes says her suit is sour grapes because she was let go. She could have deprived him of that argument had she put her complaint on record with Human Resources before she was terminated from the network.
So if you are being victimized in the workplace, it is imperative that you complain, in writing, in a straightforward just-the-facts-ma’am manner, and use the words “sexual harassment.” Give your complaint to human resources (or in a small company, the president or owner). Keep a copy, of course. And maintain records and notes of all communications on the subject (see mistake #3).
Mistake #3. Failing to save evidence.
When Vincent Victim left the Worldwide Widget Corporation, he no longer had access to his human resources file, his company email, or even his texts, since he had to return his company smartphone. By the time he came to my office, he couldn’t show me the electronic communications his boss Arthur Arrogant had sent him, including hardcore pornography, or demands for the details of Vincent’s sex life.
How about witnesses? He no longer had their contact information either. Oops.
You will win or lose your case based on the evidence. Preserve it all. Consider photos, emails, paper records. At a minimum write down the name and contact information for any witnesses and notes on what they observed. In California, you have a right to see your entire personnel file. Ask for it, make a copy, and hold onto it. Keep all that material in a safe place (not in the office). Your future lawyer is going to need it.
Mistake #4: Signing a release at the time of separation.
Don’t tell me you were under duress. Don’t tell me you just signed whatever your employer put in front of you. Judges are nearly always going to enforce a document signed by a competent adult – you. In fact, any time someone asks you to sign an agreement and you are upset or unsure, tell them you’ll take it home to review it. This buys you time. Take a deep breath, then contact an attorney.
I can’t tell you how many people have come to see me, and after telling me their horrendous story of workplace abuse, they pull out a rumpled piece of paper and ask me, “Does this mean anything?” If you signed away your right to sue – a “general release” – yes, yes it does. It means you cannot sue. Game over.
Mistake #5: Waiting too long to speak to an attorney.
Every case has time limitations. In employment cases, that’s often one year, and in some cases, as short as six months to file a claim. So don’t wait. In addition to those tough legal deadlines, witnesses’ memories fade and evidence disappears. In short: delay favors the company, not you.
When in doubt, go talk to a good plaintiff’s employment lawyer in your jurisdiction right away. Many cases can be settled before litigation and confidentially. We resolve many that way, with no damage to our clients’ careers. But you won’t know if you have a case, or what your options are, if you don’t reach out. So get moving.
Final note: even if you’ve made some of these mistakes, you may still have a case. Some states allow employees a short time to change their mind about severance agreements, for example. So don’t despair, and do act quickly to protect your rights. Laws against workplace discrimination and harassment were enacted to protect you, but you are required to take the first step in standing up for yourself.
image courtesy of thedailybeast.com