After a sexual harassment complaint, is HR on your side?

If you’ve ever experienced sexual harassment at work, you probably realized that what was happening was illegal. Typical cases involve far more than an innocent compliment or a friendly arm around the shoulders. As we’ve all seen in the news recently, sexual harassment commonly involves blatant, persistent sexual advances, unwanted sexual touching and worse.

Since sexual harassment is illegal and often shocking, you might assume that your company will respond sympathetically to an honest, good-faith complaint. Ideally, they will. Unfortunately, there’s a good chance that HR will consider you -- not your harasser -- to be a problem employee.

Cynthia Shapiro, a former human resources executive who just wrote a tell-all book about the secrets of HR departments, agrees that it’s all too common to blame the victim. This is because HR departments have an inherent conflict of interest. Their primary job is to protect the interests of the company -- and many have traditionally assumed that meant deflecting lawsuits.

"They will help you, as long as your interests don't run counter to the interest of the company, because you're not paying their salary; the company is," notes Shapiro. There may even be a policy edict in place requiring them to shut down any complaints. In other cases, the decision on whether to support you may be based on cold calculus: if the harasser is a star employee, their value may outweigh the risk that you’ll successfully sue.

Recently, however, it seems that calculus is being revised. The risk of exposure -- and damage to the company’s brand -- appears to be increasing as more and more victims come forward in high profile cases.

That may mean that even employees who are considered highly valuable could be accused. If they are, the atmosphere today may diminish their traditional protections. The calculation of the harasser’s value vs. the risk of complaints may have changed.

"Anyone worth their weight in salt knows that [HR people] have an ethical and professional obligation to conduct an objective, efficient investigation," says one HR consultant. She adds that, in today’s environment, the potential damage to a corporate brand is “immeasurable.”

What can you do to protect yourself when making a sexual harassment complaint?

It may be the case that responsible HR departments can no longer afford to ignore or deflect complaints. Unfortunately, it’s impossible to predict how your HR department will handle your complaint.

The reality is, therefore, that filing a sexual harassment complaint can be risky. It’s important to do it, but there is some risk that you may be ignored, be labeled a problem worker or even be retaliated against. This is true even though retaliation of any form is illegal under both California and federal law.

The chance that your complaint will be taken seriously increases enormously if you have substantial evidence of the harassment. That said, getting it can be a challenge and improper evidence gathering can expose you to legal risks. We strongly recommend discussing your situation with an attorney before attempting to gather any evidence.

The best way to protect yourself from retaliation and to ensure your complaint is investigated fairly is to talk to a lawyer before making your complaint.

A lawyer can explain the types of evidence that are admissible and convincing. A lawyer can also flag any potential legal issues relating to gathering evidence of sexual harassment.

Basically, working with an attorney allows you to act strategically. You can walk into the HR department with evidence in hand and an advocate at your back.

Sexual harassment includes harassment based on your gender, sexual orientation or sexual identity, and it happens to people of all genders. Taking steps to put a stop to it can make your job more tolerable, and it can also help others who may be experiencing it, too. We urge you to come forward with your complaint with the understanding that California and federal law protect you.

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