Sexually Harassed on the Job?

It may start with an off-color joke, a crude “compliment” or worse. Sexual harassment on the job is humiliating. It’s also illegal. 

How companies react to situations involving sexual harassment complaints can vary widely, says Jeanne Christensen, a partner at Wigdor LLP who represents workers in employment cases. It can depend on corporate culture, the amount of influence of the harasser, the tenure of the harassed employee, and the level to which things have escalated. 

But one common factor, she says, is that most people wait too long to ask for help.

“Unfortunately, they call someone like me when they’ve already quit or they’re about to get fired,” Christensen says. “The delay is understandable. They’re thinking, ‘He’s never going to say something like this again, and I don’t want to get retaliated against if I report it.’ But it really is much better if they call the first time something happens.” 

An attorney will spend a few minutes telling you the pros and cons of your case and give a roadmap of options to consider for moving forward—typically at no charge, says Reyna Lubin, an employment and labor attorney with Eisenberg & Baum. 

The attorneys’ first piece of advice? Your case will be much stronger if you report it in writing—to a supervisor or a human resources manager.

”If you don’t, unfortunately, the company often says, ‘Oh, she was feeling this way? She never complained. How were we supposed to know?’” Lubin says. “An email will always be saved. It’s proof that you were uncomfortable and tried to do something about it.”

Even documenting the problem in an email or text to someone outside the company—such as a friend or therapist—can help, Christensen says. 

If the harassment doesn’t stop, you have options besides a lawsuit, says Rosa Aliberti, an employment and labor attorney with Berke-Weiss Law. Sexual harassment on the job violates both state and federal laws, and several agencies—like the New York State Division of Human Rights and the U.S. Equal Employment Opportunity Commission—investigate complaints. You can file with either agency and it will be reported to the other one, but if you plan to file a federal suit, file with the EEOC. An employment attorney can help you decide whether to file in federal or state court.

“Sometimes our clients don’t want to go to court, where they can be revictimized,” Aliberti says. “Agencies can assess monetary penalties, and they also have the authority to require changes, like mandating training or hiring a diversity, equity and inclusion person.”

In the wake of the #MeToo movement, New York State passed laws changing the legal standard for sexual harassment claims: The harassment no longer has to be “severe or pervasive” to be illegal. 

The former standard set a very high bar, says Lubin. Even being groped might not have met that standard. The new one says an employee can’t be treated in a lesser way—even once—than others.

“It’s made a huge difference in how many people we can reach and the cases we can bring,” Lubin says. 

An employer will no longer be automatically off the hook just because the worker didn’t follow the company’s grievance policy, Aliberti says. And victims now have three years to file a claim instead of one. For people going through the state agency, court or private negotiation, that’s huge, Aliberti says: “People are dealing with trauma. It’s not always on the same timeline as a law.” 

Christensen believes a change at the federal level will have even a bigger long-term impact. In 2022, President Biden signed a law preventing companies from forcing sexual harassment victims into arbitration. Arbitration clauses were often buried in thick employee handbooks that workers had to sign when hired. Some executives used this provision to keep harassment complaints confidential, Christensen says.

“Now, it’s going to be a lot harder for companies to keep a harasser around,” she says. “People can file a case in court and others will hear about it. And if you’re a serial harasser, you’ll find it harder to jump from firm to firm.”

Case Not Closed

As part of settling a discrimination claim, employers in New York are no longer allowed to require an employee to sign a nondisclosure agreement, though the employee may opt to do so if desired for purposes of confidentiality. Even then, if any future investigation is needed, the employee is allowed to discuss the case.