What Should You do if You are Being Harassed at Work?
The first thing employees need to know is that not all harassment and discrimination is unlawful. Arizona is an at-will employment state, which means that an employee can legally be terminated (or harassed) for any reason or no reason, except a limited list of unlawful reasons.
Federal discrimination laws require qualifying employers to take "prompt remedial action" to investigate and stop unlawful harassment. Such laws prohibit harassment based on an employee's
- Sexual orientation and sexual identity (possibly)
- Skin color
- National origin
The employee should review their employer's handbook as it may outline steps to notify management about harassment. The employee should follow all steps in the handbook. If it is not clearly outlined where to complaint, then generally, the best way to notify management of unlawful harassment is to send an email to HR. It should include as much information as the employee can provide, including names, dates, summaries, and any other information that HR might need to know.
An employer must do its best to maintain confidentiality, but it is often impossible to do any kind of meaningful investigation without disclosing the facts and circumstances, including the name of the accuser. Confidentiality may not be maintained.
Once an employee has filed a complaint of unlawful harassment, it is unlawful for the employer to retaliate against them because they complained. That doesn't mean an employer, or the harasser, won't retaliate – it just means that they would have a separate claim for retaliation if they can prove that the employer unlawfully retaliated against them because they filed a complaint of unlawful harassment.
When submitting a complaint, an employee can ask to work from home or else not work in the same area with the harasser. HR may grant such a request, especially if the alleged harassment is egregious.
The employee should allow the employer time to properly investigate the allegations. They should continue to submit any additional information to HR if there are further incidents of harassment or retaliation.
An employee should consider keeping a diary summarizing any incident of harassment. However, that diary will be discoverable in a legal proceeding, so they should be careful what they write. If a diary is kept, any entry should be made contemporaneously and include specific information about what they heard or saw on each particular date.
The employee should gather witness statements. This could include emails or texts from coworkers confirming what they saw or heard.
An employee should consider whether they need to file a charge of discrimination with the EEOC. There is a 300-day deadline to submit a charge of discrimination or retaliation to the EEOC, which begins to run from any act of discrimination or retaliation.
Although this article outlined some thoughts and ideas for employees to consider, an employee should always seek an experienced employment attorney before filing any complaint with HR because there is a lot to consider. Going it alone is not wise.
About the Author: Jeffrey Silence is a partner at the Phoenix law firm of Jaburg Wilk. He helps employers address complaints of discrimination and defends them in litigation. He also advises employees who believe they are being discriminated against. He enjoys finding creative ways to help solve the common problems that employees and employers face, including miscommunication.
Jaburg Wilk has a unique culture that is different than other law firms. We call it the JW Way.