For South Carolina employees who are dealing with sexual harassment in the workplace, the most common emotions can be helplessness and fear. Fear of job loss, of retaliation, of how others will think of you. And helplessness in terms of the question: What do I do next? How do I actually file a sexual harassment claim in South Carolina? I’ve found that employees who understand the process better can help protect their rights and avoid mistakes that can hurt your claim later.
As a South Carolina sexual harassment lawyer, I wrote last time about what actually qualifies as sexual harassment in South Carolina.
[Read more: What Qualifies as Sexual Harassment in South Carolina?]
In summary, unwelcome sexual conduct towards you based on your sex. Typically, this is quid pro quo harassment (“Have sex with me and I’ll give you a promotion”) and hostile work environment (severe or pervasive conduct, meaning extremely serious one time mistreatment or continuous mistreatment over a period of time).
So what are the steps you need to take to report and fight back against sexual harassment?
Step 1: Document Everything
Your focus needs to be on preserving evidence. I recommend you keep notes and records of dates and times of incidents; what was said or done; names and phone numbers of witnesses; emails, texts, screenshots, or social media messages; and complaints to management or HR.
I often tell employees that if the statement is not written down in a text or email or it is not recorded, then the person who made that statement will deny it outright. 100% of the time. Audio recordings can be helpful, too, but some workplaces have written policies against recording in the workplace (or you may have HIPAA considerations if done in a medical setting involving patient information). If you report harassment verbally, follow up with an email summarizing the conversation so there is documentation of the complaint. Make sure you keep a copy of that email in your personal email account, not just your work account, which you’ll lose access to if you are fired.
Step 2: Review Your Employer’s Harassment Policy
Not every company will have a written sexual harassment policy, but most will. Some employers provide you with a physical employee handbook as part of the onboarding process, while others keep the handbook on an internal server or something accessible through an app like ADP. You should review the policy to see: (1) who you should make the complaints to; (2) whether there is an ethics line or employee hotline to call; and (3) any specific procedures.
It’s important that you follow reporting procedures where possible. If you don’t, companies will argue later that they never knew about the harassment and never had a chance to fix the problem. If the policy requires you to report the matter to your supervisor first, but your supervisor IS the harasser, then you can report the matter to that supervisor’s boss or directly to HR. Again, reporting in writing is key, so that you have proof later that you made the complaint.
Step 3: Report the Harassment Internally
Generally, an employee should report the harassment internally before filing a legal claim, following the company’s policies as we discussed above. But one common problem I see is that the employee is not clear in what the harassment is. In order to be protected from retaliation, your complaint needs to clearly describe the conduct. Just saying that you are uncomfortable or that someone is treating you unfairly is not enough. You need to state that the harassment is unwelcome and is related to your sex. You need to ask that the company make sure the harassment stops and request corrective action by the company (what the law calls “prompt and remedial action”). [Read more: Making Sexual Harassment Claims in South Carolina]
The company is legally obligated to investigate your complaints and take that prompt and remedial action to ensure the harassment stops. If not, then the company’s legal exposure only grows under Title VII of the Civil Rights Act. If the harasser is your co-worker or manager, then one option is for the company to place the harassers on leave while an investigation takes place, or to move the harassers to a different shift or location. Depending on the severity of the misconduct, the company could write the harasser up, suspend the harasser, or fire the harasser.
Step 4: Watch for Retaliation
Retaliation against an employee for making a protected complaint is illegal. [Read More: Retaliation for Participating in a Sexual Harassment Lawsuit]
An employer cannot legally punish you for:
- reporting sexual harassment
- participating in an investigation into sexual harassment
- filing an EEOC charge
- providing a witness statement about another employee’s complaint
Types of retaliation can include termination, demotion, reduced hours, write-ups, exclusion from meetings or job opportunities, and sudden negative evaluations. Oftentimes retaliation claims become just as significant as the underlying harassment claim, and they are some of the most common claims filed with the EEOC.
Step 5: File an EEOC Charge
At this point, you should be reaching out to a South Carolina employment lawyer to have your case reviewed. I would be able to advise you about the proper time to file an EEOC charge, which is often the next step in the sexual harassment process. The Equal Employment Opportunity Commission (EEOC) is the federal agency that is tasked with enforcing the federal anti-discrimination laws, and you are required to go through the charge process with the EEOC before you can bring a lawsuit for sexual harassment. In South Carolina, you have 300 days from the harassing conduct to file a charge, so you cannot delay on protecting your rights. [Read More: What is the Deadline for Filing EEOC Charges in SC?]
If you don’t have an attorney, you can contact the EEOC directly to schedule an interview and file a charge, but the EEOC (at least in Greenville) is offering interviews at least 4 to 5 months down the road. So not a great help in the moment. If you have an attorney, however, your attorney will draft and file the charge directly with the EEOC, bypassing all that waiting. I always recommend an employee speak with an employment lawyer during or before the EEOC process, because having a lawyer makes sure that all the correct claims are made (the EEOC often misses claims or files the wrong ones) and makes sure the charge is pushed along. Without an attorney, the EEOC will drag the charge process out for years sometimes.
The EEOC rarely files any lawsuits. They also rarely do any real investigation in most charges. So don’t count on the EEOC to do anything to advance your case. Only a private attorney can do that. But since we are required by law to go through the charge process first, make sure you have a lawyer to help you.
One of the biggest mistakes employees make is waiting until after they have been terminated to speak with a lawyer. In many situations, legal advice before termination can help preserve evidence, avoid mistakes, and put the employee in a stronger position if litigation becomes necessary.
Common Mistakes Employees Make in Filing A Sexual Harassment Claim
Employees can unintentionally damage their own claims in numerous ways, including by (1) waiting too long to report the misconduct, (2) not saving key texts or emails, (3) posting about the matter on social media, (4) quitting before speaking with a lawyer, (5) assuming HR is on their side (HR is not), and (6) failing to document retaliation.
You should also make sure that you doing your work 100% up to standards. Don’t be tardy or careless in your job, as you don’t want to give the company any ammunition to fire you for another reason. Trust me, the company is always looking for dirt on an employee who complains about harassment. I see it ALL THE TIME.
Every situation is different and often requires quick thinking in the moment. Strategic decisions early in the process can matter a whole lot later on.
What Compensation May Be Available?
Depending on the facts, you may be able to recover:
- Lost wages
- Emotional distress damages
- Compensation for future lost income
- Punitive damages
- Attorney’s fees and costs.
But keep in mind that the available remedies and damages will depend on the size of the employer and the specific facts of the case. Title VII includes caps on damages based on number of employees, so for an employer with less than 100 employees, emotional distress damages and punitive damages are capped at $50,000.
Contact a South Carolina Sexual Harassment Lawyer
If you believe you have experienced workplace sexual harassment or retaliation in South Carolina, speaking with a South Carolina sexual harassment attorney early can help you understand your rights and options. And if you’re considering filing a South Carolina sexual harassment claim, speaking with an employment lawyer early can help protect your rights.
At Summerlin Law, I represent employees in workplace harassment, discrimination, retaliation, and employment law matters throughout South Carolina. Please feel free to reach out to our office at (864) 278-5389 or via our Contact Us form.
