Let me start with the most important thing to do if you are being sexually assaulted or harassed int the workplace: make sure that you are safe. If you feel that you are in imminent danger, leave the workplace and then immediately let upper management or human resources (HR) know why. If you have been sexually assaulted, do not wait to report the perpetrator to the police.
Is reporting harassment at work important to having a claim under Title VII?
Best Workplace Harassment Lawyer Answer: It is very important and may be very critical. Nachaiya Kama did not report the alleged sexual harassment and sexual assault by her supervisor, John McLeod; and as a result, lost her claim. In Kama v. Memorial Hermann Health Systems, No. 22-20044, 2022 WL 7319942 (5th Cir. Oct. 13, 2022), the United States Court of Appeals for the Fifth Circuit first set out the standard to establish a hostile work environment claim: “To prevail under Title VII, the plaintiff must show that ‘(1) the victim belongs to a protected group; (2) the victim was subjected to unwelcome harassment; (3) the harassment was based on a protected characteristic; (4) the harassment affected a term, condition, or privilege of employment; and (5) the victim’s employer knew or should have known of the harassment and failed to take prompt remedial action.’” Id. at *1 (quoting E.E.O.C. v. WC&M Enterprises, Inc., 496 F.3d 393, 399 (5th Cir. 2007).
While this case deals with sexual harassment, the same analysis applies to all harassment claims under Title VII, the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Americans with Disabilities Act (“ADA”), including those based on the employee’s race/color, religion, gender/sex (including pregnancy, sexual orientation, and gender identity), national origin, or disability.
In this case, the Fifth Circuit Court of Appeals focused on the fifth element. First, the Court held that because McLeod did not have the ability to hire or fire McLeod, his title of “supervisor” was irrelevant, and he would be treated as if he were a coworker. Unfortunately, Kama argued this issue without a qualified employee’s rights lawyer to assist her and likely forfeited some discovery and arguments that would have given her a better shot of establishing that McLeod was an actual supervisor that would have resulted in the employer being directly responsible for his conduct – if proven to be true. (Best Law Read: Does A Coworker’s Porn Create A Sexually Hostile Working Environment Claim?; Can Managers Be Personally Liable?; Are Employers Liable For Harassment By Customers?). Specifically, with the help of an employee’s rights attorney, an employee can use the discovery process to find evidence that might not be readily obvious but is critical in establishing liability. (Best Law Read: How Do You Win A Discrimination At Work Lawsuit?; You Don’t Need All Evidence To Start A Discrimination Case).
The next domino to fall against Kama was that because McLeod was not an actual supervisor, the law requires that employee give the employer notice and the opportunity to correct the harassment of coworkers before it can be held liable. (Best Law Read: Why Reporting Sexual Harassment Is Critical). She did not do so during her employment. The United States Court of Appeals for the Fifth Circuit held:
Although Kama claimed that she informed a clinical nurse manager (not in her unit) and several co-workers, she admits that she never reported it through Hermann Memorial’s official channels. She did not go to the Human Resources Department or to the police until March 2019, a month after she had been terminated. Since the conduct was not “known to ‘higher management’ or to someone who ha[d] the power to take action to remedy the problem,” Memorial Hermann is not liable. Sharp v. City of Houston, 164 F.3d 923, 929 (5th Cir. 1999).
Id. at *1.
Once again, by going it alone, Kama may have lost an opportunity to establish that the clinical nurse manager from another department was an acceptable person to report the sexual harassment to and that critical nurse manager had an obligation to report it up the chain.
Should I get help from an attorney before filing a charge with the EEOC?
Best Employment Lawyer Answer: Absolutely 100 percent yes. As our employee’s rights have discussed repeatedly, the EEOC process is very complex with lots of traps. And while it might seem straight forward, the failure to check a box; use the right terminology; or meet an unclear deadline might result in the forfeiture of your employment discrimination or wrongful termination claims. (Best Law Read: Don’t File With The EEOC On Your Own; It’s Bad To File With The EEOC Without A Lawyer; The EEOC Will Not Help You Properly Fill Out The Charging Form; Read This Before Filing An EEOC Charge).
By not getting help, Kama lost her race/color and national origin discrimination claims. The United States Court of Appeals for the Fifth Circuit held that because Kama failed to check those boxes on the charge form, she was out of luck:
Individuals who pursue claims of discrimination under Title VII must first exhaust their administrative remedies. Taylor v. Books A Million, Inc., 296 F.3d 376, 378-79 (5th Cir. 2002). “Exhaustion occurs when the plaintiff files a timely charge with the EEOC and receives a statutory notice of right to sue.” Id. at 379. But Kama did not assert race discrimination in her EEOC Charge, so she cannot bring this claim to federal court.
Id. at *2.
How do I sue my employer for sexual harassment by my supervisor?
Best Sex Harassment Attorney Answer: As you can see from the example above, getting timely legal advice from an employee’s rights lawyer can greatly impact your ability to recover on a claim for sex harassment or gender discrimination. Every case is different, and you cannot rely on information from the internet or on help from the EEOC to make sure you have a good chance to prevail on your Title VII claims of discrimination and harassment. So, if you are suffering sexual harassment or are working in a sexually charged or hostile working environment, you should not wait to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical; Employment Law: Avoid Hiring The Wrong Attorney). At Spitz, The Employee’s Law Firm, you will get a free consultation with a sexual harassment lawyer/hostile work environment attorney to find out what your legal rights are and the best way to protect them. Call our top attorneys in Cleveland, Columbus, Cincinnati, Toledo, Youngstown, Detroit, and Raleigh.
The sexual harassment, sexual assault, wrongful termination and hostile work environment materials available at the top of this page and at this gender discrimination and Title VII website are for informational purposes only and not for the purpose of providing legal advice about your potential employment law claims. If you have any questions about your personal gender, race, national origin or age discrimination or harasment claims, your best course is to contact an Ohio sexual harassment attorney/hostile work environment lawyer to obtain advice specific to your situation. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this employment law website are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.