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These are your legal rights in cases of workplace sexual harassment

This is exactly where you stand, legally, as the accused, the accuser, and the company.

These are your legal rights in cases of workplace sexual harassment
[Photo: timokefoto/iStock]

Since the #MeToo movement has encouraged women across industries to come forward with often long-held allegations, many companies are taking the opportunity to give their internal policies a hard edit. It’s also made many think more thoughtfully about their interactions with coworkers, clients, employees, and managers. This mindful approach is a welcome change within the dynamics of the corporate world—but it’s also raised some questions and insecurities.

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The rights of the victim/the accuser

If you’ve been mistreated, attacked, harassed, or abused in your workplace, Jamie Alan Sasson, managing partner of The Ticktin Law Group, explains you have the right to make a claim to your employer. In the event your manager is the alleged perpetrator, management should select a designated person to be a safe haven to report any issues to. “The victim is best to put his or her complaint in writing, as by doing it orally, the employer can deny ever being informed,” he recommends. “Once the management is told of the inappropriate conduct, the employer is required to investigate and take the appropriate action, such as terminating the accused if the accusation turns out to be true.”

It’s important to note, says Sasson, that the employer is forbidden to retaliate against the employee for making such a report, and there are laws protecting the employee from being able to report instances of sexual assault/hostile work environment, without fear of retribution.
If this happens, a victim is entitled to emotional damages (and attorney’s fees) caused by a hostile work environment. If you have no other choice other than to quit following the event, you can sue your employer for losing your job or for any decrease in pay or in getting new work/assignments. Sasson also urges victims to contact the police regarding any form as sexual assault, since it’s a crime.


Related: This Is What It’s Like To Sue Your Employer For Discrimination


The rights of the accused

When you are accused of harassment within a workplace, you have the right to a thorough and truthful investigation, according to the CEO of Stewart Trial Attorneys, L. Christopher Stewart. It’s important to remember that while any accusations should be taken seriously, following the appropriate measures, ensuring the event did, in fact, happen, protects everyone within a workplace. Sasson says speaking with human resources should happen right away, and they have the right to obtain and hire an attorney to represent their case. Sasson shares if the accused is fired and never did anything wrong, they have the opportunity to take legal action against his or her employer. However, it can be a tricky slope, since many states offer ’employment at will’—so making a case for wages or other retribution can be difficult. “So, the employer really can fire the accused and have little recourse, as the employer may decide it is in their own best interests to get rid of the accused, hence ending the problem. This happens often, as it is easier for the employer to get rid of the potential problem, rather than have the accused and the victim still work around each other,” he explains.

If the accused believes the victim is lying, Sasson says he or she does have the opportunity to sue for slander or defamation. Just be prepared to have proof. “Truth is always a defense in such civil actions, so the accused must show that the victim lied to the employer, causing the accused his or her job and damage as a result,” he adds.

The rights of the employer

Glen B. Levine, the cofounder and senior partner at the Law Offices of Anidjar and Levine, says employers have certain responsibilities in regard to workplace harassment, including an employee handbook that should be signed by everyone, as a form of acknowledgment. He also says companies are required to take any and every complaint seriously and immediately investigate any accusations. Sasson says employers are not liable for the intentional acts of its employees—unless it allowed or condoned them. However, if they hired an employee, knowing they had previously been let go from another gig for sexual harassment or without conducting a background check, they could be accused of negligent hiring if an employee sues their company,

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Sasson says the employer can defend in a lawsuit, claiming lack of notice of claim, and that the employer had systems in place to stop such bad conduct, but the accused ignored the rules and regulations.

What companies can do to create a better workplace

In the wake of #MeToo, there are proactive steps employers can take to create a healthier environment for all employees. These are a few ideas from lawyers:

Rework the workplace handbook. There’s no reason why it shouldn’t be crystal clear, Sasson says. And every employee should fully understand there is zero tolerance for bad behavior. “The handbook should be signed by all employees and have procedures for reporting such conduct, including telling employees they can contact the police if they believe they have been a victim of sexual assault/rape,” he continues. “The employer should treat all allegations as extremely serious and take appropriate measures to deal with misconduct.”

Train HR for these situations. Utilize someone else within the company you trust to exercise care and expertise in these sensitive situations. This person should be nonjudgemental, fair, and just—and ensure all appropriate parties are informed right away. This starts the course of action and is essential for a workplace, according to Sasson.

Educate your employees. Stewart says for a healthy, functioning workplace, everything begins with education. This means letting all employees know what is wrong, what is okay, and what they can and cannot do. These lines should be clear and nonnegotiable. “There are some cases where people feel uncomfortable at work after a certain action and wouldn’t necessarily think that they have been harassed, when they actually have. There are some cases where someone means well, but they are actually doing the harassing,” he continues. “It’s important to have seminars and workshops to discuss everything, so there is no gray area.”

It’s also important to note there are no gender restrictions here, as Stewart says men can harass men, women can women, and people of different sexes can harrass one another. “If the conduct is sexual misconduct, the sex of the harasser and victim is irrelevant. This includes threatening someone’s job if they reject a sexual advance, offering a reward in exchange for someone submitting to a sexual advance, uninvited touching, spreading sexual rumors, circulating sexual emails, and more,” he explains. “Employees need to know.”

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