Protecting those who report harassment in the workplace.

A young female professional graduates from college with significant student loans, a car payment, and rent. She finds her first job making just enough money to meet her needs and pay her debts. Now imagine her boss is sexually harassing her with inappropriate comments and touching. She wants to hire an attorney and take action to stop her boss from doing these things, but she is terrified to even file a complaint within the company itself. She fears that if she says or does anything about it she may lose her job, and therefore her livelihood. This fear may cause her to withstand the harassment for much longer than she has to. It may even cause her to never do anything about the harassment at all. This begs the question of how the law deals with the problem of non-reporting out of fear and how it can be made easier for victims to come forward.

How does the law currently deal with this problem?

Under Title VII of the Civil Rights Act, and most state law, this young professional would have a route to recovery on the basis of sexual harassment. The Civil Rights Act even provides protection from her employer if she reports the harassment. Title VII grants a cause of action for retaliation, under which an employee can sue the employer if he punishes her in any way for reporting the harassing behavior. The fear of a retaliation suit may have a significant deterrent effect on the actions of an employer and it may even prompt them to protect the employee from any additional harassing behavior. The problem though, is that many employees who suffer harassment or discrimination do not know that they will be protected if they come forward with their claim. This leads to most claims of harassment only being brought after the employee was fired or forced to quit, and at that point, their economic lifeline, their job, is gone. Our young professional now stands jobless, facing student loans, car payments, and rent.

What can be done to prevent this situation?

Education of the law, for the employees and employers, can help prevent the unfortunate situation described above. By informing employees that they will be protected if they speak out, and letting employers know they will be punished if they retaliate, an environment can be created where an employee may be able to continue working at the job, even if they have brought a claim against an employer. This may not play out perfectly in reality, but such education is certainly a start.

What can an attorney do?

If you receive a call from an employee with a possible harassment or discrimination case you should make it a priority to explain to him or her that retaliation is against the law and that this is a significant deterrent upon employers. You should also inform them that even with this protection, an employer might search for ways to “legally” retaliate. They may fish for reasons to reprimand the employee legitimately or start disciplining the employee for things they would have overlooked in the past. This is unfortunate, but sometimes little can be done to prevent it.

Facing the harsh realities of the workplace

It may be the case that the harassment is so bad, or the fear of retaliation so great, that our young professional has to quit the job in order to continue working there. If this is the case, she does have one economic lifeline left: unemployment compensation. If she can prove harassment she should be able to obtain unemployment compensation even if the employer opposes it. This is surely not an ideal situation, but one that may be necessary if all else fails.

Fear of losing one’s job may make it extremely difficult for an employee to go forward with a harassment or discrimination case. To ease these fears attorneys should make it clear to the employee, and employers, that retaliation protection exists and will be utilized if necessary. Employees should also be informed that, if the job is lost, they can still pursue unemployment compensation and hopefully maintain enough money to live off of.

This article was first published on the Law.com Network on 3/19/14.