The #MeToo movement has emboldened many women (and some men) who have been sexually harassed or assaulted to courageously come forward and share their experiences. In many instances, these acts of sexual harassment or assault occur in the workplace. A woman who has been sexually harassed or assaulted by a co-worker or supervisor may struggle in deciding how to best address the situation. Understandably, an employee may be concerned about the impact that reporting sexual harassment can have on her job or career. The following questions (among others) often arise:
- What happens after I report sexual harassment?
- Will I miss out on valuable career opportunities?
- Will my employer set me up to fail?
- Will my employer fire me?
- Am I protected if my employer retaliates against me?
Understanding the answers to these questions will often impact a decision on how to handle acts of sexual harassment or assault in the workplace.
Saying #MeToo at Work May Be Considered a Protected Activity
Critically, under federal, New York State and New York City employment laws, employers are prohibited from retaliating against employees who report a discriminatory practice – including sexual harassment. This is referred to under the law as engaging in a “protected activity.” Protected activity can take an array of forms, including formal written complaints, verbal complaints, refusals to engage in discriminatory conduct and even nonverbal protests. An employee’s complaint of discrimination constitutes protected activity even if the conduct in question cannot be proven to be discrimination — so long as the complaint is grounded in “good faith.”
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An employee engages in protected activity when she makes a complaint to her employer regarding sexual harassment or assault, even if the complaint is “informal” and/or internal. Thus, if an employer retaliates against an employee for reporting sexual harassment, the employee may be able to bring retaliation claims against her employer. Retaliation can take many forms and need not rise to the level of a termination in order to be unlawful.
Examples of Retaliation in Response to Protected Activity
Employer conduct that may constitute unlawful retaliation includes, but is not limited to:
- a reduction in pay;
- a demotion;
- diminishing an employee’s job responsibilities;
- prohibiting an employee from attending mandatory and necessary team meetings;
- selectively increasing supervision and/or scrutiny of an employee;
- failing to provide an employee with a performance evaluation;
- placing an employee on a performance improvement plan; or
- termination.
Therefore, an employee who has made a complaint of sexual harassment or assault and has suffered any of these or similar forms of retaliation may be able to bring retaliation claims against her employer.
Are You Being Retaliated Against at Work? Speak to an Employment Lawyer As Soon As Possible
The anti-retaliation provisions contained in the employment laws are designed to protect individuals who report discriminatory behavior, including workplace sexual harassment or assault. Although it can be a difficult decision for an employee to report misconduct by a co-worker or supervisor, the law provides protection for those who do. If you are being retaliated against at work for bringing a sexual harassment complaint, or if you fear retaliation for doing so, it is very important that you speak with an employment attorney who can help you navigate these highly complex areas of law and decide the best course of action.
It is extremely important to note that all laws have what are called “statutes of limitation” that require you to file an action within a prescribed period of time. Therefore, if you have experienced sexual harassment or assault, or have been retaliated against for reporting such conduct, it is imperative to act promptly.
Call (212) 257-6800 or complete the form on this page to speak to an attorney who can advise you of your legal rights and answer any questions you may have.
| Taylor J. Crabill Associate |
| WIGDOR LLP 85 Fifth Avenue, New York, NY 10003 T: (212) 257-6800 | F: (212) 257-6845 |
| tcrabill@wigdorlaw.com wigdorlaw.com |