Employee Tip: Dealing With Sexual Harassment

If you are an employee in Wisconsin and feel you are (or were) being sexually-harassed, you should know the following:

(A) Know how the law defines sexual harassment;

(B) Keep proof (documentation or recordings);

(C) Learn your employer’s policies before complaining or taking action;

(D) Do not act angrily or righteously;

(E) Before complaining, consider the risks of retaliation;

(F) Proactively arrange for Plan B (e.g. a new job, or transfer to different boss); and

(G) Don’t quit because the employer tells you to.

This information is described in more detail below.

(A) Know what sexual harassment is, as defined under the Wisconsin Fair Employment Act (WFEA).

Sexual harassment is when an employee faces unwelcome actions based on the employee’s sex.  Under the Wisconsin Fair Employment Act (WFEA), there are three types of sexual harassment:

(1) Sexual harassment by an owner or supervisor. For example, when a boss makes unwelcome sexual comments to a subordinate employee, or fires an employee for complaining about the comments.

(2) Conditioning employment terms on an employee’s response. For example, when a boss requires an employee to date the boss in order to get a promotion.

(3) When coworkers create a hostile work environment, and the employer permits it. For example, when male coworkers joke about a female coworker’s sex life, and management doesn’t do anything to stop this conduct after receiving complaints about it.

If you are experiencing one of the three types of conduct above, you are being sexually-harassed.

The following conduct is NOT sexual harassment or discrimination:

– Sex-based actions or comments that are mutual, i.e. actions or comments that are “welcomed” by both employees.

– Harassment that is NOT based on sex or other protected characteristic/class of discrimination law (race, disability, etc.).  For example, it is not sexual harassment or discrimination when you have an abusive boss who yells at everyone, and generally treats people badly regardless of their gender or protected class.  If you are harassed by an “equal opportunity jerk,” you do not have a legal claim in Wisconsin.   (Some other States have “anti-bullying” laws that DO protect employees from abusive behavior, regardless of the reason for the abuse).

If you are being sexually harassed as described above, you may have an actionable legal claim.  Before you should pursue or complain about legal action, it is important you make sure you have proof of the harassment.  You may need that proof to improve things at your job, to reach a reasonable severance, or to pursue a legal claim, if it ever comes to that.

(B) Keep Proof: Keep a journal, save important documents, document your communications, and/or make recordings.

It is very important you create and/or keep documentation that contains proof of the harassment.

(1) Keep a Journal. You should keep a journal with dates, descriptions of the issues that occurred (e.g. negative actions or statements made against you, complaints you made, etc.), and the names of the employees involved.

(2) Keep copies of important documents. You should keep copies of documents that contain (a) evidence of sexual harassment, (b) evidence you complained about harassment, or (c) evidence you were treated adversely (e.g. demoted, fired) because of harassment-related issues.    For example, you should keep copies of any sexually-explicit emails, letters, or text messages that you receive from your harasser.  Also, keep copies of any written complaints you make about the harassment.  Finally, in case the employer terminates your job or retaliates against you for complaining about sexual harassment, you should keep copies of all performance reviews, disciplinary documents, and emails that concern your performance or alleged problems at work.

(3) If your employer is acting in a suspicious or untrustworthy manner, consider tape-recording their conversations with you. When the employer is acting in an untrustworthy manner, consider tape-recording/digital-recording their discussions with you.  In Wisconsin, it is lawful to tape-record a communication between two parties, so long as one of the parties (in this case, you) is aware the recording is being made.

(C) Learn your employer’s applicable policies before complaining or taking action.

You should review the employer’s policies that relate to sexual harassment, discrimination and making complaints about the same.

For instance, your employer may have a discrimination policy that tells you what to do if someone is sexually harassing you.  The policy may tell you a specific department and phone number to call, or specific procedures to follow.

After you review the policy, and beforeyou take action (e.g. call the designated hotline), you should consider the potential risks of retaliation, as discussed below.   All employer policies will say that the employer will handle complaints objectively, conduct even-handed investigations, etc.  But whether the employer does these things, and actually acts fair, depends on the people involved.  Before you act, you should learn who these people are, what they are like, and whether their prior conduct has been fair.  This is just as important as learning about the policies.

If you decide to take a particular action (e.g. make an internal complaint), it is important you follow the employer’s policies. Even if you think following a policy will not help you, it can help you later to show you took all the steps your employer’s policy said you should take.

(D) Do not react to the harassment with angry or righteous behavior.

When an employer does something negative, it is important you do not react negatively. Some employees who have been wronged will react with angry or righteous behavior, and say or do something that makes things worse.

In whatever way you choose to respond to an employer’s negative conduct- by making a complaint, looking for a new job, or trying to work with the employer and improve in criticized areas- it is important you remain positive. You should look to effectively solve problems rather than dwell on how you have been wronged.

(E) If you wish to complain to your employer about harassment, you should first consider the risk of retaliation, and other factors below.

Before you decide to notify your employer they did something wrong, you should carefully consider several factors.

– Consider whether the employer may retaliate.There are laws that prohibit retaliation, but that does not mean the employer will not retaliate. You should consider the temperament of the employer personnel involved with your situation. If those persons are usually fair-minded, then the chances are better they will respond to a complaint fairly and open-mindedly. If those persons typically react angrily to employee concerns, then the risk of retaliation is higher, and you should take that into account when considering the pros and cons of complaining.

– Seek advice from a knowledgeable source. You could speak to a union representative, an attorney, and/or a trusted former employee who has successfully responded to similar situations. Take their advice into account, and consider the pros and cons of different options, before you act.

– As mentioned above, check the employer’s policies, to see if they identify people to talk to, and proper procedures to follow. If you decide to make an internal complaint, make sure you contact the people the policy designates, and follow the appropriate procedures.

– Do not discuss your problems with employees you do not need to communicate with. Unless an employee is someone who needs to know about your issues, there is no reason to discuss your concerns with that employee. Even coworkers who are friends can inadvertently spread your information in a harmful way. People will talk more than you think: be careful.

– When you communicate with the employer (i.e. with the appropriate representative), use language that is factual and positive. If you communicate with any employer personnel about your concerns, you should talk to them politely, stick to the facts, and communicate with them in a positive and professional manner (even if they do not do these things). Think about who your audience is, and how they may react. If the employer representative acts angrily toward you, do not take the bait. Do not “tell off” that person, or raise your voice: doing this may lose your job, no matter how right you are. The way you communicate is just as important, or more so, than the content of what you communicate.

– Be sure you communicate your concerns in writing (in addition to any spoken complaints). If you decide to inform your employer about problems at work, it is important you do so in writing.

It is fine to communicate concerns in person or over the phone. However, it is important your concerns also be stated in writing. You may later need proof that you communicated your concerns to your employer. The employer’s recollections of spoken conversations may be very different than your recollections. For this reason and others, it is important that your major concerns are not just spoken, but are also communicated in writing.

Once you have decided on the appropriate information to write, you should send the employer an email or other document (e.g. fax, certified letter). The document should be sent to the appropriate person(s) named in the employer’s policies, to your immediate supervisor, and to an HR rep.

Your written/emailed communications should be as natural as possible. For example, if you typically email your supervisor about issues in the office, then it may be best to email the supervisor (rather than sending a certified letter) about work problems relating to the sexual harassment.

(F) Proactively arrange for Plan B (e.g. a new job, or transfer to different boss).

If your employer is giving signs they are going to fire you (e.g. give you a “final written warning” for a nitpicky issue), by all means, starting arranging for Plan B.  Send out resumes, talk to others who can get you a job in a different department, etc. etc.

All too often, employees who are being treated unfairly (e.g. are being disciplined in retaliation for their harassment complaint) will put all their energy into defending themselves against the employer’s actions, and not put energy into proactively arranging for a “plan B” for the event they ARE fired.

Remember, the employer holds the ball.  They can be 100% wrong, but they are 100% in control of your job there existing or not.  So are you.  It is fine to try to work things out and keep your job, but in case you can’t work it out, you should proactively arrange for other opportunities.

(G) Don’t quit because the employer tells you to.

Harassing employers often try to force the harassed employee to quit.  Commonly, the employer will try to get the employee to sign a resignation letter, and will tell the employee that it is “better” to resign.  From a legal perspective, this is dead wrong.  If you quit your job, it makes it much more difficult for you to get unemployment benefits, and can make it much more difficult for you to bring a legal claim (for sex discrimination, etc.).  If the employer tells you to resign, obviously they are the ones who made the decision for your employment to end: don’t let them do a final injustice to you by making you think you should sign a resignation letter.