How to Tell if You Might be Sexually Harassed at Your Next Job

in #lawpractice7 years ago

Sexual harassment has been front-and-center in the news this summer, with the latest stories about Silicon Valley's blatant sexual harassment cases.

Silicon Valley was supposed to represent the new world of work where wunderkinds produced disruptive technologies in a strict meritocracy. Perhaps not, as it turns out. Sexual harassment is more deeply ingrained in our culture than we like to admit.

I’ve written before about what women, in most cases, should do if they experience sexual harassment at work: Report it, preferably in writing to human resources or using the company's reporting mechanism, even if you know it's not going to be effective, hire a lawyer if you can, get a settlement and get out. In response to one such article, I got this response:

I have not even begun my career yet and I am terrified of this happening. I have heard sexual harassment claims from other companies too, but they are ignored a lot. Something has to change and it has to be more than "just take the money and leave."

That got me thinking about ways that women, and men, might be able to tell if a company they are looking to work at is one that tolerates sexual harassment.

Below are a few warning signs to look out for that might have helped some of the clients we’ve represented. But first let me say this is in no way intended to lay any blame at the feet of women who have suffered harassment at work, to suggest that it is somehow the woman's fault for walking into the lion's den.

1. There are reported cases of sexual harassment at the company.

Do some research into the company to see if there are any reported cases of sexual harassment. Understand that this is not foolproof as many companies settle claims of harassment quietly. They write a check to a woman, or man, who has been harassed in exchange for an agreement not to sue and a "gag order" in which the victim agrees to not talk about the events. This is often a rational way to resolve an issue from the victim's perspective. Sexual harassment lawsuits are difficult and very public. Agreeing to a severance can give a victim a nice nest egg to tie her over while she finds a place that values her work. The downside is, for you, a prospective employee, is that there is no record for you to find.

That said, some cases are not resolved this way, in which case there might be a paper trail. A simple Google search might pull up public accusations. This is true even if the case was ultimately settled. And not all cases make the news, but if a lawsuit was filed, there will be a record of it. Many sexual harassment cases are filed in federal court. All federal court records are public and online at a service call PACER, which you can find at pacer.gov. You will need to set up a free account. When you do, you can search federal filings nationwide and you can even search by employer. Warning: the PACER system can be a bit difficult to navigate, though you certainly don't need a law degree to figure it out. A good paid function that makes searching PACER more user-friendly is a service called PacerPro. Of course, you can always ask your friendly neighborhood lawyer to do the search for you.

If the company has been sued in federal court, there will be a record in PACER. You will want to look for a document called the "complaint," filed by the person claiming harassment, called by courts the "plaintiff." The complaint will tell you the story as claimed by the person harassed. Note that just because someone makes allegations in court does not mean they are true. And if you are considering an offer from a large national employer, chances are it has been sued for harassment at least once. At the very least, those are factors to consider as you read the complaints.

Many sexual harassment cases are filed with the Equal Employment Opportunity Commission (EEOC). In fact, cases must be filed here first before they can be filed at court. Many cases never progress beyond the EEOC stage, either because of settlement or because the person claiming harassment stops pursuing the matter. Unfortunately, there is no free searchable database of EEOC charges. If the EEOC sues a company, however, it will report it on its website: EEOC.gov. If you are really thorough and have a lot of time, you could try a Freedom of Information Act request to the EEOC to get records of any charges against the company. But even if you make the request, it can take many months before the EEOC responds, and even then it may deny much of your request.

2. Company policy shows it doesn’t take harassment seriously.

One way to check out whether the company takes harassment seriously or not is to look at its handbook. As an applicant, you may not have access to one, though many companies have them online, and if you've been made an offer, it is a reasonable request to ask to see it. Look to see if the company has a harassment policy. Of course, many companies do, but it is only as good as the paper it is written on. Still, you might get some sense from the company's written material about how seriously it takes harassment. You likely will be able to tell if the policy is one that contains thought and goes beyond the usual CYA policy of, "We take harassment seriously. Call this 800 number if it happens to you."

3. It has a poor attitude towards sexual harassment.

This is a tricky one. But asking the company how it handles sexual harassment incidences is a perfectly reasonable question to ask, though it could also be an offer killer, so you need to use your judgment on this one. Perhaps wait until you have an offer in hand. Or maybe you do not want to work at a place where you feel like you need to tiptoe around this issue. Sexual harassment has been front-page news for months. Employers cannot reasonably, at least—pretend like it is not a problem that should at least be discussed.

4. The company doesn’t have an in-house human resources department.

As I have often written, while there are many great human resources departments, they exist, in large part, to protect the company. The fact that a company does have in-house human resources—as opposed to none or an out-sourced human resources—is at least a step in the right direction. Even more telling is a company with plenty of cash—Uber, for example—that has no human resources department. That type of cowboy culture can also be one that does not take sexual harassment seriously.

5. There are other, obvious danger signs, like a CEO who tells sexist jokes.

I took a class on organizational behavior once and the professor, referring to the importance of leadership in an organization said, "a fish rots from the head down." In the excitement to get a job offer, it is easy to overlook the senior executive at the recruiting interview who tells a sexist joke. It is easy to believe that you need to laugh at it, brush it off to show that you can hang with the boys. Or to assume that, even if the CEO is something of an alpha-male cad, he—or his VP, or manager, or whoever else joins him in locker room talk—won't take the extra step to harass you.

If your boss-to-be takes you out to lunch for an interview, drinks too much and starts talking trash about his wife, chances are it is only downhill from there.

Sexual harassment is an entrenched, and often silent, problem. You cannot protect yourself from it completely. Still, if you know at least some of the warning signs of a bad workplace culture, you can get a better sense of a potential employer's mindset on harassment. And you might even catch a few obvious warning signs you would have otherwise missed.

Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Nashville, Tenn., and Washington, D.C., where he focuses on workplace law helping protect the rights of clients facing sexual harassment in the workplace and wrongful termination. To learn more, visit: https://www.spigglelaw.com.

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