Reporting Sexual Harassment (in the MeToo Era or Any Era)

Since the recent beginning of the MeToo movement in 2017, the volume of sexual harassment cases filed, according to most reports, has increased only slightly.   While that may change as time passes in 2018, the principles and advice governing reporting sexual harassment in the workplace haven't changed as a result of the MeToo movement.  No laws in Oregon or federal laws governing sexual harassment in Oregon have changed, yet.


When to Report 

One of the most important, and daunting, questions facing any victim of sexual harassment is when to report. There are other questions, too, such as how to report.  Or even if to report.  The latter is not a facetious question because there is a wide spectrum of behavior that qualifies as sexual harassment - much of this behavior certainly merits and requires immediate reporting while other incidents may require a cost-benefit analysis.  Even though reporting is almost always the right thing to do, reporting sexual harassment can take a toll on the victim.  This is one reason why the overall problem of sexual harassment remains as complex and stressful as it is. 

One answer regarding when to report is:  Before you are terminated!  While there are still situations in which reporting sexual harassment after-the-fact is societally important, various legal considerations require that, generally, some effort to report must be taken prior to termination.  Certainly if your employer has sexual harassment policies in place, reporting is required to preserve your option to bring a claim unless tangible adverse action is taken against you by a supervisor (in which case, you may be able to pursue a claim even absent reporting).  But it's safe to assume that, in most circumstances, the employer must be given a chance to address the situation.  This is particularly true with less egregious behavior such as joking about subjects of a sexual nature.  Even a single incident of serious behavior such as physical assault or touching may well be actionable as unlawful sexual harassment (or civil assault).

You have likely read recent news reports about victims of sexual harassment reporting matters that happened many years ago.  There are societal reasons why this can be important, including imposing responsibility on the harassers and educating their employers and the public.  In some states, the criminal justice system may provide redress for some types of sexual harassment dating back many years.  The civil justice system and applicable statutes of limitation mean that incidents occurring years before (unless the behavior has perhaps been continuous to the present) cannot be addressed through civil lawsuits.  If you have any questions about statutes of limitation in sexual harassment matters, you should contact an Oregon sexual harassment attorney as soon as possible.  

How to Report

Start by reviewing the employer policies and handbooks, if any.  Most Employee Handbooks or Manuals will provide several options for reporting sexual harassment or discrimination (sexual harassment is a form of sex discrimination).  Generally, the chain of reporting sexual harassment will include Human Resources or an employee's manager or supervisor, as well has higher level supervisors, if necessary.  Reporting harassment to co-workers is generally not considered an official report unless it leads directly to providing actual notice of the harassment to the employer's management or ownership.  It is necessary to report harassment to a company representative with power within the organization to investigate or to trigger an investigation and ultimately take action.

If the manager or supervisor is the harasser, obviously reporting the harassment to them is nonsensical.  In this situation, reporting to HR or higher management or ownership within the company may be the only option.  With smaller companies, there may be no one higher in the company to report to if the harasser is the owner himself or herself.  The employee in such circumstances is in a dilemma.  If this happens, the employee is well-advised to seek consultation with an Oregon sexual harassment lawyer and/or the Oregon Bureau of Labor and Industries (BOLI).  Any of the above actions, e.g. reporting sexual harassment or discussing sexual harassment with an attorney or with BOLI, should be "protected activity" such that retaliation will be just as unlawful as is the harassment itself.  


Reporting in Writing?

The best way to report sexual harassment is in writing.  This creates a record that a report was made and triggers a clear duty on the part of your employer to investigate and remedy the problem.  While you can also report verbally, even then it is best to follow up with a written confirmation that a report was made.   One of the hazards of limiting a report of harassment to a verbal report is that recollections fade and so often differ.  Six months or a year later, your HR representative may recall a discussion about harassment much differently than you do.  The HR representative is engaged to protect the interests of the employer.  This is not to say that HR employees are not conscientious and endeavor to reconcile any conflict between the duties owed respectively to the employer and employee.  But HR representatives are human; and the employer is writing the paycheck of the HR representative.  However, if the HR representative truly drops the ball in terms of initiating an investigation, that can be further evidence that an employer did not take harassment seriously, and did not quickly, effectively remedy the situation.  Failing to take harassment seriously happens less often today than formerly, but it still happens.

Tell the Truth

This goes without saying.  

This truism merits reiteration, however, when discussing sexual harassment because credibility is key to the just resolution of sexual harassment cases.  Sensitive issues may arise in reporting harassment when, for example, a victim attempts to protect other employees, witnesses, or yourself (and sometimes even, the individual perpetrating the harassment).  If you are not forthright and accurate in one respect, your honesty in other areas may be called into question.  If you did not let the harasser know that the behavior was unwelcome for a period of time before making this clear, you should report this accurately.  You are entitled to decide that certain behavior is unwelcome even if at first you did not feel that way.  This issue occasionally arises in quid pro quo sexual harassment cases where often-times a voluntary romantic relationship ends and one of two parties did not wish to see it end.  Particularly in this context a victim may feel conflicted between addressing the harassment legally and 'protecting' the harasser.  In terms of honesty, there is no middle road and you should generally be prepared to tell the whole story if you initiate the reporting process.    

With digital forensic capabilities being utilized in many sexual harassment cases, you should assume that any interactions using computers, cell phones or any digital devices or apps will be subject to discovery.  In more than one recent sexual harassment case in Oregon, digital analysis has called a claimant's credibility into question, and, indeed, completely derailed some cases.  As discussed below, you are wise to seek legal advice early on and the mandate to be 100% honest applies with equal force to your discussions with your attorney; if you withhold important facts, whether intentionally or because you forgot them, those facts are likely to surface later.  

Documenting Sexual Harassment for Reporting Purposes

One note here:  While it may be tempting to surreptitiously record a meeting with HR or an incident of sexual harassment as it happens, Oregon law provides that it is a misdemeanor to record an in-person meeting or conversation unless the other party present is at least aware of the recording (there may be some dispute as to whether the other party needs to actually consent to the recording, but the other person unequivocally needs to be advised the recording is taking place).  If you record in-person conversations without disclosing that fact contemporaneously, this can lead to other problems, such as an employer's "after-acquired evidence" argument to the effect that, had the employer known an employee was illegally recording conversations, the employer would have terminated the employee.  Illegal recordings are also likely to be inadmissible in any subsequent proceedings.   

While recordings without consent or knowledge at in-person meetings should not be done, it is a good idea to maintain contemporaneous notes, e.g. a diary or journal, about sexual harassment as it occurs.  This creates a record of incidents, demonstrates that the incidents were a source of distress to the victim at the time, and is a hedge against hazy recollection of events.   

Seeking Legal Advice

We recommend that you consult with an experienced Oregon sexual harassment lawyer at your earliest opportunity if you have questions concerning sexual harassment in Oregon.  The attorneys at Vogele & Christiansen have successfully handled many sexual harassment matters.  In the past year, we have successfully resolved several Oregon sexual harassment cases and we have advised employees concerning their reporting duties in other instances.  While you may expect to pay an attorney for an hour or two of time to discuss ongoing sexual harassment should you seek advice while you are still employed, that expense may be well worth it to you later.  Many attorneys, including our firm, will represent sexual harassment clients on a contingency fee basis for negotiations or litigation, but employees often benefit by seeking advice before the possibility of a contingency fee matter exists.  

Category: Sexual Harassment