I've Been Harassed! What do I do?

by: Donna M. Ballman
Donna M. Ballman, P.A.
5001 S. University Drive, Suite G
Ft. Lauderdale, FL 33328
(954)680-6300
ballmand@ballmanfirm.com

Many employees have the mistaken belief that, if they are being harassed by their employer, a supervisor, or a co-worker that they automatically have a claim against the employer. This is simply not the case. The only type of harassment that is illegal in Florida is harassment due to race, age, sex, religion, national origin, color, disability, marital status, pregnancy, having objected to illegal activity, having taken Family and Medical Leave, having made a worker’s compensation claim, because of testimony under subpoena, or having engaged in activity that is otherwise protected by a statute. If your boss is just a jerk or abusive, that is not illegal. And many small employers are not covered by these laws, so you may not be protected at all.

The other thing that I hear way too much of is, “I was harassed, so I quit and then I told them why.” This is a frequent mistake. The United States Supreme Court says that, where an employer has a published sexual harassment/discriminatory harassment policy, the employee must report it under that policy and give the employer the opportunity to fix the situation. Appropriate remedies may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in extreme cases, to terminate the harasser. If you did not avail yourself of the employer’s policy before quitting, you are giving up your right to sue for a violation.

Many employees simply refuse to go back to work, even where the employer has warned or disciplined the harasser. Sometimes, the fear is justified. But it is the employer’s duty to create a safe workplace. If you return and are retaliated against or continue to be harassed, report it again. If the employer allows retaliation or continued harassment, that is the time to get an attorney involved.

Sexual harassment or other types of discriminatory harassment are more about power than about sex. The harasser who gets away with small violations will usually accelerate the behavior until stopped. If the employer turns their head to this type of behavior, they run the risk, once being placed on notice of the harasser’s propensity, of being held strictly liable for their behavior or even incurring punitive damages.

The sad truth in Florida is that sexual harassment is becoming one of the most difficult types of claims to win in court. Particularly in Federal court, the judges are tired of hearing about these issues. Behavior that courts have rejected as not being sexual harassment has included calling at home asking for dates, looking down a blouse, lifting up a skirt, one or two instances of groping, single instances of disgusting comments, rubbing, and all types of extreme behavior. Does the law need to be strengthened? Absolutely. Talk to your state representatives, state senators, congresspeople, and senators and encourage them to change the law.

Does this mean you should give up? Absolutely not. Employers will usually take accusations of this type of conduct seriously. Once they are on notice, they will be held liable if they allow it to continue, and they know it. And most employers know that this behavior is disruptive, has nothing to do with making money, and can adversely affect morale. Even if the employer takes no action, by reporting their inaction to EEOC or the Florida Commission on Human Relations, you have put these agencies on notice that this behavior is occurring. The employer will have no excuse when the harasser does it to the next employee. And in some cases, you may have a remedy.

General harassment, bullying, and other disruptive behavior that is not addressed to an employee for a protected status or activity is not illegal. So before you write the long letter airing all your grievances against your boss, you may want to have an attorney look at it, or just make sure you are addressing your protected status. If you do complain, put it in writing and call it, “FORMAL COMPLAINT OF SEXUAL HARASSMENT,” or “FORMAL COMPLAINT OF RACIAL HARASSMENT” or whatever category you fit into. Set forth the harassment due to your protected status, and be businesslike. This is not the time to air all your complaints about the business or your boss, only to air the specific complaint about the illegal behavior.

While a long letter stating that your supervisor is incompetent or a jerk can and should get you fired, the formal complaint addressing illegal behavior should get a serious response.

If you are harassed, make sure you understand your rights and responsibilities. Report it to the employer and give them a chance to address the situation. If they allow the harassment to continue, or if they retaliate, contact an attorney to discuss your legal options.