Contributor: Amanda A. Farahany
Company: Barrett and Farahany, LLP
Title: Managing Partner at Barrett and Farahany, LLP
Sexual harassment in the workplace has been brought into the spotlight by the #MeToo movement, the media and Hollywood. While high-profile cases help draw attention to the issue, countless other women and men whose cases don’t garner media coverage deal with the consequences of harassment every day. Fortunately, the law provides remedies for the wrongs wrought by discrimination at work, regardless of your position in an organization or status in society.
Sexual Harassment Cases in the News
The recently released movie “Bombshell” tells the story of how two women in the public eye — Megyn Kelly and Gretchen Carlson — took on Roger Ailes, founder of the Fox News media empire, and won. Ailes was accused of sexually harassing Kelly and Carlson, among many others. The result: Millions of dollars were paid to settle the numerous sexual harassment suits against Ailes, and he resigned from his post at Fox News.
Carlson and Kelly also highlighted another important issue when they called for an independent investigation of the allegations made against Matt Lauer, former host of the “Today Show,” instead of how NBC News handled the complaints via its internal inquiry process. Independent investigations of sexual harassment claims are absolutely necessary in getting to the right outcome for the victim and the employer, albeit for different reasons.
Employers have a duty to investigate complaints, but how they do so is not mandated. Engaging in a third-party investigation not only helps victims in terms of fairness and impartiality, but it’s also in the best interest of the employer — both to show that they took the complaint seriously and, more importantly, to avoid conflicts and implications of bias if they plan to use the investigation as a defense.
Conversely, an internal investigation significantly increases the likelihood that the investigator will be subject to influence and a conclusion in favor of the offending organization. Time and again, human resources (HR) personnel say they investigated allegations but “could not substantiate” them. Some HR departments even go so far as to tell the victim that if they can’t prove that what they say happened actually did happen, nothing more can be done. When that’s their stance, HR may not take steps to investigate at all.
What You Can Do
If you believe you are a victim of sexual harassment, it’s critical to document what’s happened in order to build an effective case. Here are three ways you can report and document the harassment.
- Make your complaint in writing. Use email, if possible, to establish a communication trail. Send an email to the HR director or a senior-level employee in the department. If your company doesn’t have an HR department, see if the company has a policy about how to file complaints and with whom. If there’s no policy, send an email to the highest-level officer at the company, or the owner. It’s also a good idea to blind copy (bcc) yourself, or forward your email complaint to your home email address. You’ll want to be able to access relevant email communications without having to go through your employer to get them.
- Use a hotline. If your company outsources HR functions, it may have a hotline you can use to file a report. Don’t make the report anonymously. Be sure to identify yourself and keep a record of the date and time you accessed the hotline, along with phone records documenting the call.
- Record a phone call. If you aren’t able to report harassment via email, or a hotline isn’t available, you may be able to record a conversation of you making the complaint by phone. However, state laws vary about an issue called third-party consent. That is, depending on what state you’re in at the time of the call, and what state the other parties are in, you may need to get their permission before hitting the record button. For example, Georgia is a one-party consent state, so you can record without alerting anyone on the call that you’re going to do so — as long as you’re a party to the conversation and everyone else on the call is located in Georgia as well. Bottom line: Check the law before you record.
Sometimes it can be hard to know what to do. You may think you have experienced or witnessed sexual harassment at work, but you may not be sure or you might feel hesitant to report it. Trust your instincts, and consult with a lawyer who can help you sift and sort through the facts and the situation. Going up against a power structure that feels much bigger than you can be difficult, and scary, yet so many of my clients feel it’s worth it. I certainly believe it is.