Sexual Harassment: Frank Advice to Workers From an Attorney

I’ve spent decades practicing employment law, first as an employer defense attorney, then representing employees.  Over all those years, I’ve litigated my fair share of sexual harassment lawsuits. Here’s what a seasoned employment attorney would like to advise workers regarding workplace sexual harassment:

When it comes to office romances, tread carefully (or not at all)

People often assume that the bulk of the sexual harassment claims I’ve worked on have involved managers harassing their subordinates.  Certainly, I’ve handled many cases where bosses subject their workers to inappropriate or crude sexual comments, touchings, jokes and come-ons.  In some cases, these bosses retaliated against their workers for not responding favorably to their sexual advances – or what’s known in legalese as “quid pro quo” sexual harassment.

However, just as many of the sexual harassment claims I’ve handled have involved co-workers at the same level. Very often, the harassment is the offshoot of an office romance gone sour.  To anyone working in modern America, this shouldn’t come as a surprise; in fact, in a recent 2019 survey by the career site Vault.com, 30% of respondents 18-21 reported having had an office romance.  The number jumped to 72% of respondents ages 50 and over!

Unfortunately, what begins as a voluntary romantic relationship sometimes turns ugly when it ends – especially when the participants are forced to share the same workspace on a daily basis.  That being said, some words of wisdom:

If you are the rejected party, do not take out your vitriol against your former partner in the workplace, or in any manner that will impact his/her performance in the workplace

This means you must refrain from making snide comments about your former partner’s looks, sharing humiliating stories with co-workers regarding your former partner’s performance in bed, or sending your former partner emails or texts containing sexually crude jokes, insults, or threats (and that includes emails and texts sent outside of work).  

I know this seems like basic common sense, but you would be surprised just how many people let reason fly out the window in the face of a break-up.  Remember: just because the relationship began as consensual does not shield you from liability for your current harassing behavior.

If you are the rejecting party, report harassing behavior to HR or other management

Your report should be in writing and in compliance with your employer’s current policies on reporting discrimination/harassment.  Be prepared to be questioned, and to provide any supporting documentation – such as texts or emails – to bolster your complaint.

Finally, if your office romance has not resulted in a nasty break-up — good for you!  But whatever you do, please don’t give your other co-workers cause to complain about you to HR.

That’s right: If you make your office relationship overtly sexually explicit, to the point where your fellow employees feel uncomfortable, they may report your behavior to HR as a form of harassment.  For this reason, PDA, explicit jokes, and talk about your sexual exploits with your partner have absolutely no place at work.

Always remember that your most private and embarrassing communications are discoverable in a sexual harassment lawsuit 

Time and time again, I have seen both parties to a sexual harassment lawsuit shocked to find that their most intimate communications are relevant evidence and may be subject to disclosure, even when they were transmitted after hours and over personal cell phones/computers.  If you are a key player in a sexual harassment lawsuit, the following are likely fair game and producible as part of discovery:

• Texts
• Emails
• Sexts and other photographs (and yes, by “sexts”, I mean photographic texts of genitals, provocative poses in lingerie, etc.)
• Phone records (for instance, those documenting that you made tons of repeated calls to your Ex late at night).

Perhaps you have a thick skin and are unperturbed at the thought of some strange attorney reviewing those racy photos you sent to your Ex.  Fair enough. But please realize that those strange attorneys are paid to review the progress of the case with company management. This may or may not involve management seeing the photos, or at the very least, hearing reports of them second-hand.  Will knowing that you routinely exchanged raunchy photos of yourself with a co-worker change management’s opinion of you? Only you can be the judge.

(For those who are curious, yes, I have reviewed several very graphic text and email exchanges over the course of my career.  Although it sounds funny, I didn’t find that to be the case at all. Rather, I found it depressing and sad.)

So-called “reverse” sexual harassment is a growing trend.  As such, female managers would do well to protect themselves, just as their male counterparts do 

In recent months, the #Metoo movement has garnered deserved attention for exposing egregious sexual harassment on the part of males.  However, it’s important to note that “reverse” sexual harassment, in which a male employee files a claim of harassment against a female co-worker or manager, can and does occur with some frequency.  In fact, data from the EEOC indicates that roughly 16-17% of all harassment claims filed with the agency between 2010 and 2018 were by men.  And I myself have successfully represented several reverse sexual harassment claims on behalf of male employees (see, for example, here).

Some quick thoughts and advice on reverse sexual harassment:

• If you are a male employee being subjected to harassment by a female co-worker or manager, take action.  It is believed that many instances of reverse sexual harassment go unreported because male workers are too embarrassed to complain.  If you find yourself in this situation, let me give you some counsel: It is never right, let alone legal, for anyone to subject you to unwanted touching, sexual advances, or sexual attention, comments and jokes in the workplace. Period! This is especially true if the female at issue has hiring/firing and promotion authority over you, or the ability to negatively impact important working conditions like your hours, salary, and schedule.

For this reason, it is imperative that male employees report female harassment to HR or other management, in writing and in accordance with their employer’s current policy governing discrimination and harassment.

• If you are a female manager, be just as vigilant about your interactions as your male counterparts.  As reverse sexual harassment claims continue to rise, you would do well to take common-sense measures to protect yourself, such as refraining from meeting with male subordinates alone after-hours, or behind closed office doors.  And — although this should go without saying – refrain from flirtatious or sexually-charged banter with male workers.

Sexual harassment was a thorny legal issue when I began practicing law and remains so today.  If you have questions about it, call our offices today for a free consultation.