For South Carolina employees who have been sexually harassed and need to make sexual harassment complaints, the prospect of reporting such harassment to management or HR can be daunting. Retaliation can and does often happen, both by the harasser being reported and by the company who now marks you as a troublemaking employee. But in many instances, the only way to fight back against sexual harassment claims in South Carolina is to make that first report to HR or management. Once you have made that complaint, you have engaged in “protected conduct,” which means that if the company tries to fire you for making the complaint, then you would have an additional claim of retaliation under Title VII of the Civil Rights Act, in addition to the underlying claim of sexual harassment.
What Should Sexual Harassment Complaints to HR Contain?
I always recommend that an employee making any complaint to HR do so in writing. I would advise the employee draft the complaint and send it to HR or management from the employee’s personal email account, not work email. You want to make sure that you retain a copy of the written complaint, because if you get fired, you would lose access to your email and that emailed sexual harassment complaint very likely will disappear.
I recommend the complaint be made in writing, and I make this recommendation based on over a decade of litigating these types of employment cases. If the complaint is not in writing or recorded, the company will flatly deny the sexual harassment complaint ever occurred, every single time. It’s uncanny, really.
In addition to the format (in writing, from a personal email account), you need to include enough details to support the allegation of harassment. A vague statement that says, “I would like to complain about how I was treated unfairly,” but that doesn’t provide any explanation for that complaint, likely doesn’t rise to the level of a protected sexual harassment complaint. You should mention the behavior that you consider to be sexual harassment, provide the name of the harasser, provide dates of harassment, and make clear that you were targeted because of your sex. Magic words such as “hostile work environment” and “sexual harassment” and “Title VII” are also helpful. If you have supporting documents, such as text messages or pictures, you can attach those or mention that you have them and are willing to share as requested.
What Should the Company Do In Response?
Once the company learns of the sexual harassment (or any other type of harassment based on age, race, sex, disability, or religion), the company has the obligation to investigate the allegations and take prompt remedial action to make sure that the harassment does not continue. If a proper investigation takes place, the complaining employee would normally be interviewed more fully by HR, and other witnesses would also be interviewed. The company should also interview the harasser.
I’m cynical after so many years of representing employees, because it’s a rare case where the company actually agrees that harassment took place. Normally, they respond that they couldn’t corroborate the allegations. Unless you’ve got text messages or pictures, you can be sure that the harasser will deny it, and depending on the power or influence of the harasser, other employees may not want to get involved or provide information about it either.
But where the company does find that harassment likely occurred, the company has to make sure it doesn’t not happen again. The company could fire or discipline the harasser, move shifts or positions around, or otherwise take steps to ensure the harassment does not continue.
What if the Sexual Harassment DOES Continue?
If the harassment continues even after the complaint is made, then the employee can escalate the matter further by filing a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). If the employee has an attorney, then the attorney can draft and file the Charge for you. Continued harassment is further evidence of a hostile work environment and provides an additional basis for a legal claim.
If the company decides to hire you for making sexual harassment complaints, then you have claim for unlawful retaliation.
Throughout this process, it can be helpful to have a sexual harassment attorney to guide through the various steps that I’ve discussed above. I’ve helped employees draft their initial complaints, as well as stepped in where necessary to address ongoing issues, file the charge, seek damages, or negotiate a settlement or severance agreement.
Just remember, you are entitled to a workplace that is free of harassment and discrimination, so you do not have to just put up with that sort of illegal behavior. If you need an advocate for you during that process, please give our office a call.
