The following tips have been prepared on the basis of legal strategies in different domestic and international jurisdictions. They are not a substitute for obtaining legal advice on the specific policies and rights that apply to your situation. We strongly recommend that if you have experienced, or think you might experience, a situation of sexual harassment, you get legal advice or support as soon as you can. Please note that these recommendations only cover situations of sexual harassment, and that the advice here may not be appropriate if you suffer an incident of workplace sexual abuse. If you don’t know who to contact, AtlasToo can try to help you to find a suitable lawyer in your jurisdiction.
Know your rights
Some workplace cultures have a high tolerance for harassment. This can often put you under huge pressure to consider unacceptable conduct as ‘normal’. This is not normal. Sexual harassment, harassment and abuse have no place in the workplace.
If you are not sure if certain conduct would be considered as sexual harassment, look for your organisation’s staff rules/manual for the definitions and description. You can approach HR for a copy if there is no other way of obtaining one. If your organisation has a policy, make sure that you follow it.
If your organisation does not have a policy in place, find out what laws apply in your jurisdiction. If you need help with research, contact AtlasToo and we will reach out to our network confidentially on your behalf to try to source information for you.
Where possible, find a way to express your lack of interest, enthusiasm, reciprocation, consent or even comfort in an express manner. In many jurisdictions, it is a legal requirement that behaviour is unwelcome or unwanted. However, please note that some organisations, as a matter of policy, do not require the complainant to explicitly reject the harasser in order to make a claim so it might be helpful to ascertain the specific rules of your workplace on this point. AtlasToo will attempt to collect information as to the policy of different organisations on this point
If you feel safe doing so, make it clear to your harasser that their behaviour is unwanted. Ideally, you should avoid using excuses that can leave room for ambiguity about whether the behaviour is unwanted (e.g. “I’m in a relationship”). If possible, express your position in front of third persons or in writing so that you have a written record. Where the conduct is through electronic medium, try your best to make your responses as clear as possible in expressing discomfort and lack of interest.
You have the right to work in a safe, harassment-free environment. Your employer has an obligation to provide this environment. You should not be asked or expected to put your safety and well-being at risk, for example, by working with or travelling with someone who is a risk to you. You have the right to say no.
If possible, express your position, and the reasons for your position, in front of a third person or in writing so that you have a written record. Documenting the reasons you said no may help you to protect your position or claim damages if your employer attempts to take retaliatory action against you because of your refusal to compromise your safety or security.
If you experience harassment or suspect behaviour at work, start taking notes. It is best to be cautious and record incidents even if you are not sure whether they meet the threshold for harassment.
It may be useful to keep notes of problematic interactions that your harasser has with other colleagues. Other colleagues may be experiencing similar issues.
Keep notes of all incidents on your personal computer, device or in a notebook. Record what happened, what was said and who was there. Make these notes as soon as possible after the incident and keep them in your personal possession. Do not record them solely on your work computer or a work device.
A quick easy way to record it is to send yourself an email from your own email. This creates a contemporaneous time stamp and can eventually become a full list of dates and events, saving you hours of emotionally exhausting labour should you choose to complain later. If you have someone you feel comfortable confiding in, use your personal email to also send them your notes as soon as you have written them so that you have a time recording.
It can also be helpful to talk to a close friend, family member or professional about your experience. If you sought help from online groups (like Atlas), professional mental health personnel or lawyers, these also create contemporaneous records.
Get corroborative evidence before you file a complaint
Unfortunately, harassment complaints often end up being the complainant’s word against the perpetrator’s word. Ideally and where possible, you should try to avoid this happening.
If a colleague or other person has witnessed the harassment or is aware of similar incidents, try to get a record of their memories before you take action or tell people you might take action. Often colleagues, who were very sympathetic when the harassment happened, clam up once a formal investigation starts and they are forced to take sides.
One potential way to get a record of a colleague’s contemporaneous memory of the harassment is to email them. Try to elicit their confirmation that they were present when the incident occurred, and ask them if they can remember what was said/done, and their impression of the incident.
Keep any documentary evidence like email, text, Skype, or Slack in a safe place outside your workplace. Take screenshots where necessary. Ideally, you should store documentary evidence in multiple locations, such as:
- in a personal folder at work
- on your personal laptop
- on an external hard drive
- by emailing a friend and yourself.
Track your performance
Be aware that you may suffer retaliation as a result of harassment. Keep any records that you have relating to your work performance safely outside of the office. Keep performance reviews, feedback from colleagues, clients or service users or anything else that demonstrates that you are doing a good job. This can help deal with an attack on your credibility by someone who is harassing you.
Confide and seek support
Confide in someone you trust, either inside or outside your workplace. You are in a difficult situation and emotional support is important. Also, having another person who is aware of the situation as it happens can be beneficial if you decide to pursue legal action.
This friend could be interviewed to attest to your emotional state of mind and the impact the harassment had on you at the time of the incidents. It creates a third-party narrative of how you managed and coped with the events and the time, energy and effort you put in to process the behaviour. If you are at a duty station where you have nobody locally, consider the use of video chat.
If you feel completely isolated, just know that you are not alone. There are lot of women who are part of the Atlas and AtlasToo network who are there for you. If you are concerned about confidentiality, you can reach out for support, advice and assistance on a confidential or anonymous basis through the website link (https://www.atlaswomen.org/atlastoo/).
Make a formal complaint
If you decide to report your harassment, contact your HR department and ask for a meeting. Be aware that they are there to protect the organisation, not you. It can be helpful to be accompanied to such meetings e.g. by your lawyer or a support person, who can act as a witness to the meeting. Document what is said at the meeting. You can do this in writing or ask for permission to tape it.
You should also be aware that HR may not be able to keep your allegation confidential. They may be under a legal duty to escalate it to your manager or other senior staff. In some jurisdictions, certain records might become public. Your employer might also be obliged to report your complaint to the police, if the allegations would amount to a crime.
If you have concerns that any further transmission of your complaint or your identity might damage your safety or privacy, seek legal advice as soon as possible. Your legal adviser can advise you on the protective measures and redactions that you can request to protect your security, privacy and dignity.
What can you ask for?
There is no one-size-fits-all remedy for sexual harassment. The remedies that might be appropriate can vary drastically .
What you can ask for during an investigation
Organisations have a duty to ensure that the complaints procedure is effective and not illusory. In practice, this means that you should not be exposed to retaliation or adverse repercussions because you have exercised your right to file a complaint. You should also not be required to sacrifice your privacy. Most complaint processes allow the victim to request that their identity and identifying features be withheld from public documents, and that any hearings are convened in a confidential manner.
You may wish to discuss your options with your legal adviser or union representative to find the best course of action in your particular scenario. In some instances, such as hardship postings/ small teams/ short term consultancies, it may not be possible to obtain the best-case scenario. Please consider options that ensure your safety and security above those that are in the interest of your work, or mandate, and seek legal advice if you feel that the option presented to you by the organisation fails to ensure your safety or penalises you as the victim.
If you are concerned that your harasser will continue to harass you while an investigation is ongoing, you can ask that they be suspended immediately, pending the outcome of the investigation. Alternatively, you can also ask to be placed on paid leave or moved to another office, section or department.
If your employer or colleagues start treating you differently or engage in discriminatory or prejudicial conduct towards you following the submission of the complaint, this might constitute either a separate form of harassment or aggravating circumstances relating to the subject matter of the complaint itself. It is therefore important to continue to document your treatment, including the manner in which the organisation reacted to any requests for temporary security and safety measures to be taken while the investigation was pending. Your security and safety are the paramount concern, but if the organisation has forced you to choose between your security and your career, then this is a matter that you might wish to include in the complaint itself.
What you can ask for if your complaint is upheld
The following is not an exhaustive list, but provides examples of the types of remedies that lawyers have asked for in previous cases in the context of employment law:
- That the contract of the perpetrator is terminated.
- That the organisation makes structural changes to prevent further instances of sexual harassment/harassment. This can include:
- mandatory harassment prevention and response training, in particular for persons in management positions;
- retraining HR and other ‘first responders’ on the best practice for response to sexual harassment;
- an independent investigation into allegations of harassment in the organisation which is staffed by investigators with specific competence in this field;
- terminating the employment of persons who have committed or facilitated sexual harassment in the organisation; and
- implementing a zero-tolerance policy for such conduct.;
- ensuring the policy is well-distributed, with visible support from the top.
- That the complainant is compensated for damage to their professional development or reputation e.g. assistance for professional development through participation in certain trainings, allocation of additional responsibilities or being afforded specific or greater opportunities that the applicant was denied previously, as a result of the harassment;
- That the complainant be awarded pecuniary damages:
o for sexual harassment – focus might be on the harm (physical/psychological) to the complainant and the intentional or negligent failure of the organisation to protect them from this harm.
o For other forms of harassment, damages are often tied to specific damage to the complainant’s career/professional development/health.
- An objective and impartial reference drafted by a person agreed upon by the complainant.
Employers have an obligation to provide you with a safe working environment and the onus should be on them to find a fair solution for you. You should not be penalised personally or professionally because they have failed to ensure a safe environment.
These guidelines were compiled on the basis of advice posted on the Atlas Facebook site, research, input from external lawyers who specialise in this field and peer review. The final version benefitted, in particular, from the extremely helpful input and advice provided by Jess Lacey, Melinda Taylor, Priyanka Chirimar, Kirsten Keith, and Marlene Yahya Haage.
Should any readers have any comments concerning the content, or suggestions as concerns additional advice or topics, please email us at email@example.com. A copy will be placed in the #ATLASToo Virtual Library of best practices, training manuals, case law, and templates. February 6, 2019 Previous ICL MEDIA REVIEW: 17 – 24 Juin 2019 Next Lessons I learned fighting Sexual Harassment Privacy
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