I remember years ago, driving and listening to Mojo in the Morning, and hearing one of the radio hosts give awful advice about how to handle being sexually harassed at work. The advice? Don’t report it to your employer.
Why is this awful advice? Because the law usually requires your employer to have notice of the harassment before it has a legal obligation to stop the harassment. There are a couple of exceptions but this is the general rule.
Here is what the law generally requires an employee to prove to succeed in a harassment case:
- That you are a member of a protected group. Everyone meets this requirement.
- That you were subjected to sexual communication or conduct;
- That the sexual communication or conduct was unwelcome;
- That the sexual communication or conduct created a hostile work environment; and
- Your employer knew about the harassment and failed to stop the harassment.
That 5th element is the kicker. The law assumes that an employee can just go and report sexual harassment and everything will be a bed of roses. The employer will accept the complaint with open arms, worry about the employee and their work environment (instead of how to protect themselves) and miraculously, the sexual harassment will stop and everyone will start singing Kumbaya together as the workplace gets fixed overnight. Unfortunately, these types of Kumbaya moments are few and far between as employers do not have a magic wand and most employees are terrified to report the harassment.
There is however, more protection under the law if you report it. And if it didn’t stop when you nicely asked them to stop, its not going to stop unless you report it. Report it in writing, clearly, in a respectful way. And feel free to contact an attorney at this point, before you make your report, to help you make informed choices.
A couple of last notes. Federal law offers a bit more protection than Michigan’s law does when a supervisor is involved. If a supervisor is involved and an adverse employment action happens (think termination, demotion, shift or location change, etc…), you don’t have to prove number 5 to succeed and the employer has to prove that it had a workable reporting process and you were unreasonable in your failure to use it. But you have to file a complaint within 300 days of the harassment to the EEOC and you cannot go back more than 300 days from when you file the complaint with the EEOC; under Michigan’s law (ELCRA) you usually have a 3 year statute of limitations.