Going into a sexual relationship with a co-worker is risky, especially if you don’t clearly understand where consent stops and sexual harassment begins. 

What is sexual harassment? Sexual harassment is inappropriate workplace conduct involving the perpetrator and the victim’s sex. However, the perpetrator must take some hostile action for the victim to have a probability. The onus is on the victim to show how they have been denied tangible benefits of their job because they rebuffed the perpetrator.

Unfortunately, showing probability is the danger many sexual harassment plaintiffs run into with their cases. If you’re going through what you think is sexual harassment, document everything – from the many times you tuned them down for dinner to the persistent calls and texts. 

However, it is crucial to keep in mind that just because you’ve had an adverse action taken against you at work does not mean you’re a victim of sexual harassment or sexual discrimination. There has to be something beyond what a reasonable person would infer would make them uncomfortable. If there is, go through the internal HR process first, or if in a small company with no HR, file a charge with the government agency. 

The timeline of filing a report or a case of sexual harassment is critical. You can’t come back to say that because the accused accidentally massaged your shoulders two years ago, you’re now feeling as though you were threatened, hurt, harassed, or bullied. So how do you know if your boss is sexually harassing you? What should you do about it? 

Learn more in this episode of the David vs. Goliath podcast with elite personal injury lawyer Matt Dolman and his guest, Trescot Gear, Esq. They discuss workplace sexual harassment, what it is, what it is not, how to build a case, handling it in a small company without HR, and more.   

In this episode: 

• [00:49] Matt Dolman introduces his guest, Trescot Gear, Esq., and the topic of the day: sexual harassment

• [01:15] What is sexual harassment?   

• [02:08] When does a consensual relationship between coworkers become sexual harassment? 

• [05:37] The gray line for sexual harassment – when there is not enough for a case 

• [07:56] Working at a small company with no HR channel for reporting sexual harassment? Here’s what to do.

• [10:40] Sexual Harassment warning signs 

• [11:53] Dealing with retaliatory conduct by employers

• [13:14] How employers can legally take action against an underperforming employee without the risk of being charged for retaliatory conduct

Transcript

Welcome to episode number seven at Dolman Law Group Podcast. I’m here with Trescot Gear from the Gear Law Firm in Tampa. Trescot is of counsel to the Dolman Law Group where he handles employment and labor issues. Trescot, say hello to the audience today.

How’s it going, Dolman audience?

Trescot, again, handles issues for our firm. Trescot, today we’re going to talk about sexual harassment. What is sexual harassment? What does it constitute? What are legal remedies? Take us through the whole nuts and bolts of it.

Okay, seat belts fastened over here. From the macro level, sexual harassment is any inappropriate conduct in the workplace that involves, you could call it, inappropriate conversations, inappropriate behavior. Anything that’s drawing parallels between the perpetrator and the victim’s sex.

When is it consensual? So let me take you through a couple scenarios, if you will. So in this situation, you have somebody working in your workplace that you find interesting, you take an interest in them. You ask them out for a lunch or a dinner and it’s consensual though. All Right. They go out with you, clearly they take part in it, there’s a mutual meeting of the minds. When does it become harassment? Why would that be considered harassment?

Okay. Well, let’s add a couple of facts to this. Are you this person’s superior?

I am. And take me through why that would be a problem if I am their superior.

The typical problem that comes into play is whether or not there’s been a coercive action on the part of the superior. If the, we won’t call them a victim, we’ll call them the potential victim in this case, feels as though you are coercing them into this action, AKA you’re taking advantage of them. It may be from the pretext of, “Hey, this just goes out to dinner or whatnot.” But if he or she believes that by not going to the dinner, you’re placing them in some sort of job jeopardy, some sort of adverse job jeopardy, that’s where we start going down the road of harassment. Now, as of right now, in this hypothetical, I don’t believe you’ve caused anything wrong at this point. If we add more facts to the case, in this new age of digital media, if there have been text messages, Facebook messages, instant messages, of course, in these kind of offices, inter office messages, these all create a pattern of conduct that a court could find in favor of the victim.

Before we move forward, though, let’s say I make it obvious that it’s consensual, that there’s nothing to be gained or lost by me, by you going out with me. You’re the female in this case. Is there a negative inference to be drawn from that? I know it’s probably not best practices, but is there a negative inference to be drawn from the fact that I’m just a superior? If we just… In a vacuum, because the only fact you know is that I’m the superior, will the court draw a negative inference to that? Could that be a negative inference actually instructed to a jury?

No, no. That won’t be a negative inference. There has to be a hostile action taken against the person who we call me in this case, the female victim. There has to be a hostile action taken. There has to have been some sort of change in job status. We can call it a demotion a pay. We can call it a restructuring of job details. You can call it even a denial of a promotion. Now, the issue that the victim in this case who would come to us has, is probability. She has to show that but for her rebuffing of you in this case, she would’ve received all the tangible benefits of her job. That’s the danger that plaintiffs run into in cases like this. But I tell all my potential clients, the first thing you want to do is document everything.

If the superior is constantly… For instance, if you’ve turned him down for dinner a couple times and he won’t let up, he’s persistent, he’s blowing you up, so to speak, to use the modern parlance, you want to be documenting everything. You want to be keeping the record for the attorneys of the Dolman Law Group. You want to be keeping the record of all the communications between the two of you. Because from that point, that’s where you bring up the word inference. The inference comes into play when you see the record of conversations, the record of conduct, and you’re trying to draw a malignant basis from that point.

We’re in the error era of the me too movement, right? And everybody knows that’s caught a lot of fire in social media. And me too movement for those who are not aware, have been living in a cave for the last few months, is there’s a lot of individuals, a lot of women who have come out now and have gone into the strength to talk about past incidents involving harassment. Some of them are very egregious. But what are the gray areas? When is it not egregious? What are the issues where you’ve seen, where it really does not reach to the point of being harassment that you’re seeing where clients or prospective consumers reach out to you and it’s not quite there? Tell my audience where is the gray line and when do you cross that line?

So just to go back to our initial hypothetical involving the male superior and the female subordinate, just because you have had an adverse action taken against you at work does not mean you’re the victim of some sort of sexual harassment or sexual discrimination. A light teasing… there’s often times a lot of very collegial atmosphere in these type of modern working environments. There has to be something that goes beyond what a reasonable person would infer would make them uncomfortable.

So you look pretty today. You look nice in that dress. Is that…

Now, even when you say you look nice in that dress, we start leading to their undertones and connotations from that that can start creating a case in her mind and possibly a case in the courts.

That’s not enough though. It’s-

Now, if you are making blankets to… The key with this, as long as you’re not treating her any differently than other similar situated individuals in the office. Ironically, if you treat all the people in the work on a similar level, it gives her less of the cause of action.

So if you’re the guy that constantly makes jokes and you say, “Hey, you look good in that dress, but the dress would look even better if it was crumpled up on the floor,” is that crossing the line? But what if you make those jokes every day to different people in the office?

Now, what also starts is, has she made a complaint before yet? Has she made… Because if there’s ever an HR function at a workplace, they’re going to have an internal policy on sexual harassment complaints. If she’s never made a complaint about any of this before, then it’s not going to look good from my standpoint as the attorney, because she not only has not shown enough of a pattern of abusive behavior to connote sexual harassment. But also she’s failed to show that she went through the proper internal check panels that most workplaces have to ensure that the behavior was ever corrected. If the guy never had a chance to correct the behavior, guy or girl had a chance to correct the behavior, then the inference that can be drawn is that the behavior was not so flagrant, so willful to lead to a sexual harassment.

What about a small business where, again, you have the superior to subordinate relationship, but the superior, it’s a small business. And that superior, let’s say it Dolman Law Group. Let’s say I didn’t have a lot of employees. You have 30 some employees, everybody. Let’s say it’s just me.

Yes.

And I am HR. I am the owner. I’m everything. Then what then? And who do you report to?

Now, that’s the issue. Because typically what you do is you run up the chain of command unless the immediate superior is the person doing the potentially harassing behavior.

And so that’s perfectly fine behavior, and I’m going to continue on with that or?

In that case, your only chance is to go outside the organization and file a charge with the government agency. Now, since you mentioned that in this hypothetical, you are a small business under 15 employees, you’re not under the protection of federal labor laws. We all know that Florida’s an at will state, but it doesn’t mean that you can be discriminated against based on your predicted characteristics; race, sex, gender, disability, all those fundamental qualities that make you an American citizen. You would have to go to the FRA or FCHR, which is the Florida Commission on Human Relations, file a charge with them. And now the other concern with this or a protection that you as an employer have, she has a limited amount window to do this, to file this charge. You don’t get to… I don’t want to draw comparisons between this and say the Bill Cosby situation, because those are apples and oranges. But in those cases, those don’t fall in the same sort statute of limitations issues that sexual harassment does.

Sure.

You’ve got 180 days to file your charge.

So your recourse is you file the charge.

Your recourse is you file the charge with the FCHR. The state agency does their own investigation of the employer. They’ll contact the employer, get the employer’s side of the statement, what’s called a position statement. At what point the employer will have an opportunity to rebut each of the charges brought by, in this case, the female subordinate. Now, if I’m being honest, the FCHR rarely finds cause for this because there is a lot of boy who cried wolf in these type of scenarios.

Even with us being aware that the me too movement overall has been helpful and instructional in opening the eyes to possible workplace harassment around the country, there’s not a lot of smoke but there’s fire there. Once they complete the investigation, then they’ll issue a right to sue letter to the female subordinate. That’ll only give her 90 days to file lawsuit in state court. So these timelines, they move fast. You can’t sit on your ass, for lack of a better word, for a year or two, and then come back and go, when he accidentally massaged my shoulders two years ago, now I’m feeling as though I was threatened, hurt, harassed, bullied, all the other demeaning qualities.

Why didn’t you do something about it during the statute board

Yes. So I would stress to people who may believe that there’s even something there, that’s why you create the timeline. You create the timeline of the events, the highly questionable events. And then we have to go back and relate back to that timeline and see, well, how close are we to running out of time, so to speak, and get your charge filed quickly as possible.

So the warning signs are just anything that’s inappropriate, and then really looking for a timeline where there’s history. It becomes habitual.

Well, yes, there’s… The other warning signs are habitually singling the person out. Now, the singling out aspect is oftentimes the most underrated part of sexual harassment is treating her differently than everyone else. It could be better or poorly. But if she’s constantly being singled out with either criticism or praise, that’s at least some room for concern from that standpoint. What she needs to do is not only not, not fall prey to the advances of the superior, but rebuff them, and also make note to him directly that this is unwarranted and not cause for anything further going forward.

Okay. We already discussed how you go about combating it, which is obviously creating the timeline and the history, and obviously getting it done within a statutory period. Let’s talk about retaliatory conduct. And that becomes an issue often in these sexual harassment cases, where the employer retaliates against the employee or the former employee. Tell me the type of situations that occur.

So that typically comes to play. We previously talked about the demotions or the change in your job duties. Retaliation from both a federal and a state level involves, in this case, still the female subordinate engaging in protected activity, AKA going to HR, filing a charge with the government, something in which she should be insulated from recourse and then there’s an adverse job action taken against her in that aspect. She’s demoted from $15 an hour to $12 an hour. She’s bumped down from salary to hourly. The employer has to… When she brings this action based on retaliation, he has to that there was a legitimate, non discriminatory reason for her being moved from an administrative assistant to a laborer, for instance, if her duties have changed dramatically.

So that’s a duty that’s on the employer no matter what the situation is.

Once she brings this action against the employer-

Okay. She has to bring action. What’s the best advice you have for employers out there to avoid, avoid being on the target list? So to avoid having a potential action taken against you, the job performance of your employee is subpar, substandard, you want to demote them, you want to decrease their hours, decrease their pay, remove certain responsibilities, what have you, maybe remove a title. How do you do that without it looking like there might be a retaliatory conduct because as a potential, it could always be brought against you?

That’s a very good question. It’s sort of the inverse of the document everything and timeline situation. You don’t want to become an enemy to your employees, but you want to have them be on notice that their work performance or job performance is at a certain level. If anything deviates from that level, that gives you grounds. That’s where as the internal HR functionary, whether you are the sole proprietor or whether you’re running a firm a size of Dolman Law Group, that’s where you have to create internal policies and procedures that are well laid out, well documented, and also put them on notice as to any corrective action that could take place.

So oftentimes you see this in the form of a progressive action plan or a corrective action plan when it comes to discipline. The first written, final, and then termination. You have to put them on notice that the behavior is not going to be warranted moving forward. You can’t… You gain the danger as an employer when you seem to just take an adverse action against them with no explanation or no basis for them to come to understanding about why you made the decision. Clarity will save you thousands of dollars down the line as an employer and employment suit if you are just clear with the objectives-

Document everything you possibly can.

Document everything you possibly can. And in your internal policies and procedures, you want to lay out clear ground marks for what are either offensive behavior or unwarranted job behavior. Even if this person is being harassed, if they’re not being harassed at a level that’s qualifies for sexual harassment, you can still take an adverse action against them as long as they are so deviating from your company’s norms at that position that not taking action is going to be costing you money. [inaudible 00:15:08] the court is going to respect the employer’s ability to run a well run business, just can’t be at the expense of their civil rights. And that’s judge the position of employment law in a nutshell.

Understood. Well, this concludes episode number seven of the Dolman Law Group podcast. Trescot, is there any other issues about sexual harassment you want to discuss, or you think we’ve covered ait all in a nutshell?

I think we’ve given the broad strokes. If anyone has issues, feel free to contact the Dolman Law Group. We have a team of highly experienced employment attorneys on staff ready to assist.

Trescot, what’s the easiest way for my listeners to contact you directly?

The easy way to contact me is through my phone number, which is (855) GEAR-LAW. Or you can even reach me at Trescot, it’s a funky name so I’ll do it phonetically, Tango, Romeo, Echo, Sierra, Charlie, Oscar, Tango at gearlawllc.com. Free to answer any questions-

That’s gear spelled G-E-A-R.

G-E-A-R like the gear of a car.

Perfect. Well, I appreciate you coming out today. And again, this concludes episode number seven. Thank you very much.

Thanks, Matt.