Understanding Your Options On
So you believe that you have been the victim of discriminatory harassment, now you want to know what your options are. First and foremost, the victim must be diligent in pursuing any and all options in order to protect his or her rights. There are a number of options that are available to you, but each comes with time limits some of which are strict and can result in your losing your cause of action unless you act quickly.
Telling the harasser to stop and reporting the harassment to the employer
One of the elements of the cause of action is for the victim to show that the verbal and physical conduct was unwelcomed. The victim can show the conduct was not welcomed by telling the harasser to stop and by reporting the conduct to the employer. If telling the harasser to stop is too confrontational and scary, the victim can have a third-party tell the harasser to stop or can write a letter or send an email to the harasser telling the harasser to stop.
To be ultimately successful on any cause of action for harassment against the employer, the victim may first have to report the harassment to the employer. Without such report, the victim can be barred from a remedy against the employer. Whether the victim must first report the harassment to the employer depends upon whether a tangible employment action by a supervisor has occurred as a result of, or in connection with, the harassment. A tangible employment action occurs where the victim is terminated, demoted, transferred, and the like. If the victim suffers a tangible employment action as a result of the harassment by a supervisor, the victim need not report the harassment to the employer because the employer is strictly liable for the harassing conduct.
Where, however, there has been no tangible employment action, the victim must first report the harassment to the employer if the employer has adopted and disseminated policies prohibiting harassment and if the employer has policies for the reporting and investigating of unlawful harassment. If the victim fails to report first to the employer the harassing conduct before initiating suit, the employer may avail itself of the affirmative defenses found by the Supreme Court in the cases of Faragher v. Boca Raton and Burlington Industries, Inc. v.Ellerth, commonly known as Faragher/Ellerth affirmative defenses. In those cases, the U.S. Supreme Court held that it is a defense to employer liability if an employer proves that it “exercised reasonable care to prevent and correct promptly any [unlawful] harassing behavior” and that the employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”
Reporting the harassment to the Equal Employment Opportunity Commission
If the victim would like to pursue his or her harassment claim in federal court, he or she must first exhaust his or her administrative remedies. The victim exhausts his or her administrative remedies by filing a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or a state Fair Employment Practices (“FEP”) agency (both New York and Connecticut have FEP agencies). Under federal law, more specifically Title VII, a victim must file a charge of discrimination within 300 days of the unlawful employment practice. With respect to hostile environment claims, it is difficult to determine what particular day it occurred since by its nature such claims involve repeated conduct over a series of days or even years, and unless severe, a single act of harassment may not be actionable. Accordingly, the unlawful employment practice of hostile environment claims is comprised of all the incidents constituting the harassment. To satisfy the 300 day requirement the victim must file the charge of discrimination within 300 days of the last day in which an act constituting the harassment occurred. Nat’l RR Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002).