Can You Sue for Workplace Harassment?
And how to pursue a sexual harassment claimBy Benjy Schirm, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on August 11, 2023 Featuring practical insights from contributing attorney Caitlin Madden
Use these links to jump to different sections:
- Exposing Workplace Sexual Harassment: Culture Change and Legislative Reform
- How to Prepare for a Legal Claim: Document Incidents of Workplace Harassment
- Considering Litigation and Other Legal Options
- Find an Experienced Employment Lawyer
A young, ambitious new employee is an essential member of the team—making contacts and rising through the ranks quickly. They garner the attention of many supervisors; unfortunately, one takes it too far. They give unwelcome sexual advances, looks, or touches.
It’s shockingly common.
“It affects everybody, every day,” says Caitlin Madden, a former employment law attorney in Madison (she now serves as Deputy Legal Counsel to the Wisconsin Department of Workforce Development). “People have to work. Sometimes you see coworkers more than you see your family. It’s great when people have a good experience at work, and that’s what many people experience. But there are also situations that no one should have to put up with—like being harassed in the workplace.”
Thanks to legislative reforms following the MeToo era, in particular Congress’s passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, it’s easier for employees to pursue sexual harassment lawsuits against their employers.
Exposing Workplace Sexual Harassment: Culture Change and Legislative Reform
Sexual harassment complaints are finally coming out of the shadows thanks to organizations like the #MeToo movement. The wave of allegations of sexual harassment in the public eye is signaling a shift in corporate workplace culture in the post-MeToo era.
For example, due to reports of sexual harassment, Microsoft ended forced arbitration agreements for workplace sexual harassment allegations in all of its employee contracts. Such arbitration agreements required that any legal proceeding over sexual harassment be kept private and made it prohibitively expensive to pursue legal action.
The company also supported sexual harassment prevention and legislative reforms that, in 2022, became reality. Federal law now prohibits companies from forcing employees who allege sexual harassment to arbitrate their claims without the option of filing a lawsuit.
“I’m glad there are some legal protections in place for people when they do experience workplace harassment. No one should have to put up with this,” says Madden. But while there has been progress, additional legislative protections are needed in federal and state law, she says.
“I see a lot of people having issues with corporate culture and harassment, not of a supervisor but from a colleague or other employee,” she says, noting that Supreme Court cases like Vance v. Ball State University (2013) make these claims more difficult. That opinion dictates that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII of the Civil Rights Act of 1964 only if they are empowered by the employer to take tangible employment actions against the victim.”
“This rings pretty false compared to what people experience,” Madden says. “It can be really difficult when you hear people suffering at work from sexual misconduct and for them to have no clear recourse in the courts.”
How to Prepare for a Legal Claim: Document Incidents of Workplace Harassment
“It seems like people are aware of their rights and are exploring their options if they are experiencing these things at work and are emboldened to recognize that this treatment isn’t OK,” says Madden. “We are certainly seeing people being more interested in seeing what claims they can bring.”
It can be hard to know where to turn when a workplace interaction becomes negative.
“What I recommend that people do is to do your best to document each interaction,” Madden says. “Review your human resource’s sexual harassment policy and document these issues. It can go on for years, and it can be hard to explain what has happened if we don’t have good documentation and proof of harassing behavior.”
Saving emails, text messages, or phone messages can help, as well as writing down dates, times, and descriptions of alleged harassment.
Considering Litigation and Other Legal Options
“Many people want to leave their job because of harassing conduct and a hostile work environment, which may have implications on their legal claims in the future,” Madden adds. “So, if you are able to consult with somebody to create an exit plan first, that can be really beneficial. An attorney can offer legal advice to evaluate the best ways to move forward, either with legal claims or other mechanisms”—such as filing a report with the Equal Employment Opportunity Commission (EEOC).
Speaking with the media or using social media may be an option, depending on the circumstances and the advice of counsel. It may make more people aware of it, but could lead to additional stress and scrutiny for you.
Find an Experienced Employment Lawyer
Prolonged litigation is cost-prohibitive for many potential clients. Madden notes that legal costs are a huge barrier in this area but that some attorneys may provide free initial consultations or work on a pro bono basis.
“This was why class actions were such a good thing—being able to aggregate claims and bring them to an attorney that is able to take multiple courses of action on a contingency fee. It’s now more difficult with individual claims. There can be fee-shifting provisions in many statutes which can help, but it’s still extremely difficult to succeed in this way and to be able to pay for proper counsel,” Madden adds.
To find an experienced employment litigation attorney in your area, search the Super Lawyers directory. For more information about this area, including employment and civil rights law, see our overviews on employment law and sexual harassment.
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