What Are My Options?
This is the second in a series of posts on workplace sexual harassment and assault. In the first post, our Legal Advocacy team talked about dynamics of power and control as well as legal definitions. In this post, they will cover legal protections and options and how BARCC supports survivors. Content note: descriptions of workplace sexual violence.
Workplace sexual harassment and assault can leave survivors feeling overwhelmed, unsafe, and unsure of what to do next. Our Legal Advocacy team at BARCC is here to support survivors seeking information about what they can do and help them consider their options as they decide how they want to move forward.
Survivors of sexual violence in the workplace have many of the same options as survivors in all settings have. The survivor could report to the police, obtain an order of protection, and map out strategies for staying safe. In addition to these, there are a few other options that survivors can access when sexual violence affects their employment.
The legal protections and processes outlined below are just a few pieces of a much larger puzzle, and just some of many options available to survivors. If you’ve experienced workplace sexual harassment and want support, BARCC’s Legal Advocacy Program can provide free, confidential support, further information, and resources based on your individual situation.
Workers are protected from discrimination on the basis of sex, sexual orientation, and gender identity through both state and federal laws. Sexual assault and sexual harassment are legally considered to be forms of sex-based discrimination and are covered by these laws. Employees are also protected from retaliation for filing a charge of discrimination or speaking out against discrimination.
In Massachusetts, two agencies enforce these laws and investigate reports of violations: the Massachusetts Commission Against Discrimination (MCAD) and the federal Equal Opportunity Commission (EEOC). The deadline for filing a report with MCAD is 300 days from the last incident of discrimination; for the EEOC, the timeline is 180 days. Employees may also choose to file a civil suit against an employer; however, the first step requires them to file with MCAD or the EEOC.
Employees are often encouraged to report internally within their workplace before filing a civil rights grievance, although this is not required to access options through MCAD or the EEOC. Employers should have sexual harassment policies in place so that employees know where to turn if they need support addressing sexual harassment or the impacts of sexual assault. But we often see that, depending on the industry and how large the staff is, this policy may not always be written out or it may be challenging to find.
In terms of process, internal reports will often be directed to a Human Resources (HR) staff person or a supervisor. However, many workplaces do not have formal HR staff, and so employees may need to tell a direct supervisor. Something to remember when you’re reporting internally is that the person you’re speaking with, even in HR, works for the company or organization.
How things might play out
Jamie had recently begun working as a retail staff at a department store shortly before the holiday season. Jamie reports that after the staff holiday party, a manager of a different department offered Jamie a ride home. Once they arrived at the apartment, the manager sexually assaulted Jamie. Jamie reaches out to BARCC for support.
Let’s think about how this scenario might play out: Jamie works at a large retail store and likely has the benefit of a formal HR staff with a clearly written sexual harassment policy. They only recently began working at the store, however, and don’t know the workplace culture. Perhaps Jamie had been out of work for a long time before obtaining this job, and they’re nervous about whether HR will believe them. Jamie’s first priority may be ensuring their job security. Even knowing there are protections, they still may be very hesitant to report what happened, knowing rent is due next week.
Let’s say instead of retail, Jamie worked at a small restaurant as a server, and the offender is a shift supervisor. It’s possible that this workplace does not have a formal sexual harassment policy, and it’s likely that Jamie would have to report to a manager or owner rather than an HR staff person. Perhaps the manager is long-term friends with the offender. Jamie may have a lot of distrust in the restaurant’s response and may be concerned that the manager would not take the report seriously. Or worse, Jamie fears they will be scheduled on reduced shifts or terminated. These risks can be particularly daunting for an employee who is undocumented. Employment protections also cover undocumented workers; however, the stakes may be much higher regarding an employer’s response.
If the survivor employee were a union member, there may be additional protections and a separate process reporting a grievance.
For all of these reasons, we emphasize the importance of a survivor focusing on what is best for them when weighing their options. What are their specific concerns? What are their needs?
What happens next
What could Jamie expect after making a report to HR? When employees decide to disclose sexual harassment or assault to their workplace, the employer should take steps to investigate and respond to the allegations of abuse or harassment. This may involve investigating the claims and speaking with both sides to gather more information. Depending on the findings, the offender may be disciplined or modifications to the work setup may be made to ensure that the survivor employee feels safe at work. Because of employment privacy requirements, the details of any disciplinary measures taken against an offending employee may not be shared with the survivor.
In Jamie’s case, the HR staff person would likely start by taking a report from Jamie and determining whether the situation falls under the sexual harassment policy. Does what happened to Jamie impact their ability to perform their job responsibilities? Did the incident take place at work or a work-sponsored function? Does the offending employee have supervisory authority over Jamie or the ability to influence decisions about Jamie’s work? Did the supervisor make any threats or promises regarding Jamie’s work status? They would need to determine whether this fits within the scope of what they are responsible for. If the answer to that is yes, the workplace would begin an investigation.
In the meantime, the workplace should consider what Jamie needs in order to successfully perform their job responsibilities. Can the workplace provide a temporary leave of absence? Does Jamie want to ensure they don’t have overlapping shifts with the offender? Depending on the workplace, these accommodations can be tricky to figure out — but as we discussed in our last post, the workplace has a responsibility to respond if Jaime is experiencing a hostile work environment. The workplace would also be investigating whether what happened fits under “quid pro quo.”
After making a report, Jamie has legal protections from retaliation, as mentioned earlier. A couple examples of retaliation: if a direct supervisor schedules Jamie on significantly reduced hours or if the employer terminates Jamie’s position based on their report of the assault.
How BARCC helps
How does BARCC help people navigate all of this? We understand that the decision to report to an employer — or to MCAD or the EEOC — is very individual and can be complex. Our legal advocates provide free, confidential support to help survivors understand and think through their options.
We talk with survivors about their specific concerns, as each workplace has unique dynamics, and do our best to answer questions they have about their legal rights and courses of action they can take. We can help survivors review policies in an employee handbook, help them understand their rights, and discuss privacy considerations. Knowing that these cases can be delicate, we may also encourage a survivor to consult with an employment attorney and will provide referrals as needed.
Note: This post offers general information about workplace sexual harassment and is not intended as legal advice. The broad descriptions provided here cannot include the many complex issues that arise in individual circumstances. If you’ve experienced workplace sexual harassment and want support, BARCC’s Legal Advocacy Program can provide further information, connect you with other resources, or refer you to legal representation. You can request an appointment online or call our office at 617–492–8306.
Don’t miss the first post in the series: “Do I Have to Put Up with This? Sexual Harassment in the Workplace.” And stay tuned for the final installment, which will talk about the vital role of an active bystander in preventing workplace sexual harassment and supporting survivors.
Originally published at barcc.org.