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Opinion

Here’s What to Know Before You File a Sexual Harassment Lawsuit

Oct. 17, 2017

Document everything and team up with other victims

The famous figure with multiple sexual harassment and assault accusers no longer shocks us, and that is a tragedy. Harvey Weinstein’s is a familiar story: an influential powerbroker is accused of mistreating woman after woman, silencing their efforts to bring him to justice and often denying allegations. It’s Bill O’Reilly’s story. It’s Bill Cosby‘s story. It’s even our president’s story. But women who suffer this treatment need more than our jaded eye rolls. They need support to protect their careers, financial security and mental health.

Sexual harassment at work is illegal, and law can offer recourse — if used wisely. We have studied workplace discrimination for the past decade and know which lawsuits fare well and which do not. Here’s what you need to know when considering legal action.

Document, document, document. As soon as the harassment starts, keep a detailed record of every incident that seems threatening or harassing to you. Include the date, time, your description of the event, who was in the room and other key details, as well as your personal feelings about it.

Know your employer’s policy and follow it. If you never actually make a complaint following the procedures of your organization, management will argue it had no chance to remedy the bad behavior. Follow the process, keep copies of everything and see rule #1.

Prepare to be disbelieved. Despite its diversity trainings and promises of support, the Human Resources office ultimately exists to protect your employer, not you. There may be good people there who want to help, but employers often set HR apart from management, which is the real locus of power. This diminishes HR’s ability to make real change. Even coworkers who sympathize with you behind closed doors may stay silent when you need them. In smaller organizations, there may not even be an HR office — and in a company with fewer than 15 employees, you may not be protected by Federal Law. Check your state and local laws to see if they offer any protection. If not, a lawsuit may not be your best course of action. Seek allies in the workplace who will stand by your side if you choose to bring the issue to management.

You will likely be fired. We’ve found that employees are routinely laid off for so-called “performance issues” right after making formal complaints. Once you’re fired, you’re very unlikely to get your job back. It’s not entirely impossible to pursue legal action and keep your job. One plaintiff we met during our research suffered years of harassment but couldn’t leave because she needed the insurance. Eventually, she filed a lawsuit, her story was confirmed to her boss by a respected former employee — a man — and the case was resolved, allowing her to keep working at the company and her harasser to be kept from rising in the ranks. But if you cannot afford to take the risk, first pursue an internal resolution by teaming up with other employees who have been mistreated and coworkers who will stand up as allies. It’s possible one of the other targets will be in a position to lead a legal effort.

Work with an attorney. Nearly a quarter of all employment civil rights claims are brought by people pro seindividuals representing themselves. Unfortunately, pro se plaintiffs are almost three times more likely to have their cases dismissed and twice as likely to lose on summary judgment, meaning they lose the case completely. Law is complex and deadline-driven, and your case will largely hinge on properly following procedure, which is difficult for someone not trained in law. Look to public interest law firms and non-profit organizations like the Employment Law Center in San Francisco or the Chicago Legal Clinic. Google “Legal Aid” to find low- and reduced-cost providers that can help you. You can also contact legal clinics in law schools and your state bar association for referrals and support. These organizations might be able to provide you with a lawyer free of charge, refer you to one who will take the case on contingency (meaning you only pay if you get an award) or offer paralegal-type assistance and advice if you have to file without a lawyer.

Team up with other victims. This is a big one. A full 93% of employment discrimination cases are filed by a single individual and these cases are far more likely to result in a plaintiff loss. If someone else has been the victim of sexual harassment in your workplace and they join your case, you’re more likely to be successful in court.

Prepare to be attacked in and out of court: Your company may defend itself by degrading you. If your employer fired or demoted you, it will have to say you were a bad worker. You could be painted as “hysterical” or a “problem employee” — or even face ugly headlines about yourself, as happened to model Ambra Battilana Gutierrez after she told police about being groped by Weinstein. There is no easy way to face these attacks — make sure you have a network of friends and family to support you if this happens.

Think hard about that low-ball settlement offer. Unemployed women who have been sexually harassed and have bills to pay and kids to feed will undoubtedly feel pressure to accept a settlement offer in order to end the headaches and heartache. But settlements with private employers often have confidentiality agreements, and those agreements keep your experience — and the experiences of any other victims — secret. And when your harasser’s actions are kept hidden, the bad behavior is likely to continue. It’s tempting to think, “Well, if they have three or four settlements like this, surely they will fire my abuser.” But the record shows otherwise; if your harasser is making the company enough money, he will be protected. No one who is victimized is obligated to speak out. But if you want to — and can afford to do so — force the perpetrator into the sunlight.

Prepare for a realistic outcome. Don’t expect a perfectly satisfying resolution. You may not get to tell your story or feel a sense of justice. The media loves million dollar verdicts in high-profile sexual harassment cases, but these are very rare. About 50% of employment discrimination cases end in settlement, for an average $30,000. Only 6% of cases filed in federal court go to trial, and only about a third of those result in a victory for the plaintiff.

This is a sad column for us to write. We are advocates for justice who believe the law can and should be used to end toxic discriminatory behavior. But litigation places a tremendous burden on targets of harassment, who are often outgunned by their employers’ defense teams. It’s time for that to change.

We call for these reforms:

To improve conditions for victims of sexual harassment seeking justice, the U.S. Congress and state legislatures should fully fund the EEOC and the state agencies charged with enforcing antidiscrimination law. These legislative bodies should also pass laws to increase damages in employment discrimination cases. In successful cases, attorneys’ fees should be paid by the employer. These measures would incentivize lawyers to take these cases.

To help prevent retention of long-term sexual harassers with multiple victims, we need laws that prevent employers from including mandatory arbitration clauses in employment contracts. These clauses require workers to give up their right to be heard in court in order to accept a job. Similarly, employers should not be able to force employees to stay silent about anything that could harm the business reputation of a company. Companies should be required to report settlements to a clearinghouse accessible by people seeking jobs so they can avoid applying for jobs at organizations with repeat offenders. This transparency would motivate employers to treat sexual harassment like the serious type of discrimination that it is.

If you’ve been harassed and choose to move forward with a lawsuit, go in with your eyes open and fight the good fight. We’re rooting for you.

Laura Beth Nielsen is a Research Professor at the American Bar Foundation and Professor of Sociology at Northwestern University. Ellen Berrey is assistant professor of sociology at the University of Toronto and an affiliated scholar of the American Bar Foundation. They co-wrote Rights on Trial: How Workplace Discrimination Law Perpetuates Inequality with Robert Nelson.

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