When NO is Not Enough
In the past few decades, the general public has come to understand that sexual harassment in the workplace is unlawful. But what should you do if you are the victim?
Most white-collar companies have developed fairly strong policies to dissuade sexual harassment. These businesses encourage those who feel they have been targeted for sexual harassment to report the offenders to a supervisor, or to HR. This allows employers to correct the problem prior to an employee filing litigation. In fact, employees are required to report these incidents, and exhaust all methods of administrative remedy before they can bring a lawsuit. Failing to take these steps can get a case thrown out of court before it gets started.
LEE vs. CITY OF LOS ANGELES
As an example, in the matter of Lee v. City of Los Angeles, firefighter Brenda Lee, an African-American lesbian woman, was subjected to about twelve years of harassment on the job. Her commanding officer initially told her that her transfer to the station was unwelcome. He stated a co-worker felt “he couldn’t bring his daughters to the station (with her present)[…], and that Elder (her commanding officer and head of her station) didn’t approve of [her] lifestyle either.” Later, he went on to state about her life partner, “It’s a waste she’s with you. She’s pretty… [and] she’s got a nice rack.” The abuse [Lee] suffered did not stop with jabs aimed at her sex or orientation. Christopher Hare, another firefighter in the station, often watched sporting events on television, and within earshot of Ms. Lee, repeatedly made blatantly racist comments, calling the African-American players “freakin’ burr heads”and “f–ing ni**ers,” among other similarly offensive remarks. Ms. Lee suffered hazing in the women’s restroom and locker room, and was continually threatened with retaliation if she objected to her treatment.
The law is designed to protect professional women from such humiliation at work, but it does not protect them unless they take formal steps to protest the harassment. Victims must report any incidents of harassment to a direct supervisor or the HR department, to provide the employer an opportunity to remedy the situation. Absent this step, a victim cannot sue for damages.
In Firefighter Lee’s case, her tormentors were her immediate supervisors. Faced with this dilemma, she reported the acts laterally, to a commander of a different platoon [Bressler]. Fearing further retaliation, she asked that he keep it to himself. As it continued to escalate, Bressler felt he needed to report the incidents up the chain of command. His report received no response from upper management.
After about a decade of working in these conditions, Ms. Lee filed a report with the California Department of Fair Employment & Housing (“DFEH”). Her case was eventually brought to court, and she was awarded a settlement of just under $7,000,000.00, exclusive of punitive damages. Several years later, in 2010, an appeal by the City of Los Angeles was successful in overturning the award, and remanding the case to a new trial. Although Ms. Lee had filed a report with the DFEH concerning the bulk of the allegations, she had been terminated a year after the report as a result of retaliatory actions stemming from her reporting the harassment. The Appeals court found that Ms. Lee had not fulfilled her obligation to exhaust administrative remedies in connection with her termination. The issue of her being forced out of her career as a firefighter had not been brought on the initial DFEH complaint, as it had not yet happened.
REPORT YOUR ABUSER
Barbara Lee’s situation is one of the most egregious examples of what failure to report can do to a legitimate case. Her case underscores the need for plaintiffs to stand up initially, rather than allowing these situations to drag out over years. Make a clean record, and if the abuse does not stop, contact an attorney and take action.
Reporting can be difficult, in practice, as some HR departments require witnesses, statements and other corroboration that the targeted employee cannot provide because their tormentors are often smart enough to make the offending comments in private. To make things worse, in many cases, the victim of the harassment is alone in the battle. With employment still difficult to come by, many just endure the behavior, remaining silent for fear of losing their jobs.
Female firefighters and police women often endure a broad spectrum of inappropriate conduct, the rest of us would find intolerable, believing it to be a necessary “part of the job,” much like their male counterparts endure “hazing” rituals. Lesbian women in particular, suffer greater abuse than their heterosexual counterparts, as ignorance about sexual orientation compounds insults about their gender. They often become the subject of unbearable ridicule in a male-dominated workforce. Barbara Lee’s case was a trifecta of such ignorance, manifested from almost every corner of her professional universe.
So with all these obstacles, what are your options? Fighting sexual harassment, even in this day and age, requires enormous fortitude on the part of a plaintiff. It would be misleading to say it is a simple matter of just registering a complaint and all is well. But clearly, in an age when we proclaim ourselves to be “over” racism and to believe that women and men are equals in the workplace, women who find themselves in situations that disprove this assumption must stand up and be counted. They must do so not merely for their own peace of mind at their place of employment, but to ensure that their daughters and granddaughters can be proud, independent women who can follow their careers in a world where this behavior has been completely eradicated.
If you find yourself in a position where your gender, your race, or your sexual orientation is being constantly called into question at your workplace, call an experienced labor lawyer and find out your rights. Do not just quietly take it, because it is not just “a part of the job.”
Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Call us: 510-735-6316