An employee who makes a workplace harassment claim while still employed holds a position of significant strength and protection. By raising the complaint while remaining with the company, the employee safeguards themselves against unjust termination and invokes the shield of anti-retaliation laws.
If an employee believes they have experienced illegal harassment in the workplace, it is important to take the following steps:
Document the Incidents:
Keep a detailed record of the harassment, including dates, times, locations, individuals involved, and any witnesses. Note down any discriminatory or harassing comments, actions, or policies that have occurred. As much as possible, include dates for each incident, and the identities of any witnesses to the incident. This documentation will provide evidence and support your case.
Review Workplace Policies:
Familiarize yourself with your employer’s policies and procedures related to discrimination, harassment, and complaint processes. Understand your rights and responsibilities as outlined in these policies. Obtain a copy of the personnel manual/employee handbook that applied during the same time period of the alleged misconduct, if possible, as well as the most current version.
File a Complaint:
If internal policies permit, file a written complaint with your employer’s human resources department or designated complaint procedure. Follow the specified reporting procedures and provide the necessary documentation and details of the discrimination incidents.
An important legal concept about making a complaint at work:
Understand that NOT complaining and following an available complaint procedure can adversely affect your credibility if you pursue formal legal action (a lawsuit) because the employer will assert an “affirmative defense” that you didn’t use the internal process, and had you done so, the company would have investigated and remediated the problem, therefore your damages are limited.
Simply put, you cannot keep your complaints secret and then spring them on the employer AFTER you get terminated (or five minutes before your termination meeting). An employee is expected to act in “good faith,” meaning the employee acts like s/he honestly hopes that the employer’s internal complaint procedure will work and does not take any action to inhibit, delay or improperly affect that decision-making process. Keeping your complaint secret is not consistent with a good faith course of conduct, unless there is some other threat inhibiting internal complaints.
Scenarios Requiring Notice to Your Employer:
Internal Complaint Process:
Most employers have established an internal complaint process to address workplace issues, including harassment. If you experience harassment, it is crucial to follow your company’s established procedure by reporting the incident to your immediate supervisor, human resources department, or another designated authority. Providing timely notice allows the employer to investigate the matter and take corrective action.
Hostile Work Environment:
If the harassment you experience creates a hostile work environment, you should notify your employer promptly. A hostile work environment is one where offensive behavior is so pervasive and severe that it negatively affects your ability to perform your job duties. By notifying your employer, you give them an opportunity to take remedial action and prevent further harm.
Third-Party Harassment:
If the harassment is perpetrated by a client, customer, or vendor, you should notify your employer about the situation. Employers have a duty to protect their employees from harassment, even if it originates from external parties related to their business operations.
Retaliation Concerns:
If you fear retaliation from your employer for reporting harassment, you should still notify them and document the complaint. California law prohibits employers from retaliating against employees who make good-faith complaints about workplace harassment. If retaliation does occur, it can be the basis for another legal claim.
Scenarios Where Notice to Your Employer May Not Be Required:
Personal Resolution:
In cases of relatively minor incidents or misunderstandings that do not create a hostile work environment, you may choose to address the situation directly with the harasser. Sometimes, a simple conversation can resolve the issue without involving the employer.
Imminent Danger:
If you face an immediate threat of harm or danger, your first priority should be to ensure your safety. In such situations, consider reporting the harassment to law enforcement or relevant authorities before notifying your employer.
Harassment by Employer or Supervisor:
If the harassment is perpetrated by your direct supervisor, you may not feel comfortable reporting the incident within the company’s internal complaint process. In such cases, you have the option to file a complaint directly with the California Department of Fair Employment and Housing (DFEH) or seek legal counsel to explore your options.
Consult with an Employment Attorney: Consider seeking advice from an experienced employment attorney who specializes in harassment cases. The Ruggles Law Firm can assess the merits of your case, explain your legal rights, and guide you through the process.
File a Charge with Appropriate Agencies: If internal resolution attempts are unsuccessful, or if you believe your employer has not adequately addressed the situation, you can file a charge of discrimination with the appropriate administrative government agencies. In California, the primary agencies for employment harassment are the California Civil Rights Department (formerly the Department of Fair Employment and Housing) which enforces the California Fair Employment and Housing Act, as well as the federal Equal Employment Opportunity Commission (EEOC) which enforces Title VII of the federal Civil Rights Act.
In California, Matt recommends that employees that have experienced workplace harassment file a complaint with the California Department of Civil Rights, not the EEOC, because the remedies and damages available under California state law (the FEHA) are broader than the remedies and damages available under Title VII, the federal Civil Rights Act.
Explore Mediation or Settlement: In some cases, mediation or settlement discussions may be offered as a means of resolving the dispute at the administrative agency level (i.e. after you file and administrative charge with the CRD or EEOC, but before you file a lawsuit incourt). Consult with your attorney to determine if this is a viable option and to ensure your rights are protected during the negotiation process.
Consider Legal Action:
If efforts to resolve the matter through internal channels or agency investigations do not result in a satisfactory resolution, consult with your attorney about the possibility of pursuing a lawsuit to protect your rights and seek appropriate remedies.
Remember that time limits, known as statutes of limitations, apply to filing discrimination claims. It is important to act promptly to preserve your rights. An employment attorney can guide you through the specific deadlines and requirements based on your circumstances.
Note: This information is not legal advice and is intended only for informational purposes and a general guideline. Consulting with an experienced, licensed employment attorney is recommended to obtain personalized legal advice based on your individual situation.
Contact Ruggles Law For Workplace Harassment Help
Matt has a thorough understanding of California workplace harassment law and decades of practical experience litigating harassment claims in California and federal court. Using all of his knowledge and experience, Matt and his team can quickly evaluate your potential claim and give you realistic advice on what you can expect if you sue your former employer.
The fight against workplace harassment is an ongoing battle that requires vigilance, knowledge, and the unwavering commitment of both employees and employers. California, with its robust legal framework, stands at the forefront of protecting workers’ rights and promoting diversity and inclusion in the workplace. Get in contact with Ruggles Law today!
