How Texans can get help if they’ve experienced sexual harassment at work

Former lawmakers and legislative aides have told The Texas Tribune that sexual harassment regularly goes unchecked at the state Capitol. And sexual harassment policies rely on officials with little incentive or authority to enforce them, particularly in cases of harassment by lawmakers.

But what about men and women who work beyond the Capitol? Across the country, women are coming forward alleging that powerful men — including Alabama Senate GOP nominee Roy Moore, comedian Louis C.K. and film producer Harvey Weinstein — have made unwelcome sexual advances.

“If there’s anything a lot of the recent attention to this has shown … there is strength in numbers,” said Chris Kaiser, the director of public policy and general counsel for the Texas Association Against Sexual Assault. “It’s a lot more difficult to ignore or defend when it becomes clear that a lot of people have been subject to it.”

Here’s a look at what federal and Texas laws say about harassment in the workplace, and what victims can do to pursue harassment claims.

What qualifies as sexual harassment in Texas?

The Texas Labor Code and the U.S. Equal Employment Opportunity Commission both protect employees from sex-based discrimination and sexual harassment. The laws apply to employers with 15 or more employees and to all state and local governmental entities regardless of how many employees they have, according to their websites.

Sexual harassment — which is considered a form of discrimination under the Civil Rights Act of 1964 — can include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature,” according to the EEOC.

Harassment doesn’t always have to be sexual in nature; it can involve any unwelcome conduct based on race, color, religion or sex. According to the EEOC, harassment becomes unlawful when it results in a work environment that a “reasonable person” would consider “intimidating, hostile or abusive” or if the offensive conduct becomes a condition of continued employment.

Ric Godinez, a McAllen-based attorney who takes on employment cases, said the industries found to be the most vulnerable to these types of cases are low-wage service industry jobs and male-dominated industries.

What do I do if I’ve been the victim of harassment in the workplace?

For survivors of sexual harassment who are unsure if they’re ready to formally report or feel unsafe doing so, the first step is to document the incident — and its aftermath — as best as you can.

“The timeline ends up being really important down the road,” Kaiser said. “And if it’s at all possible, talk to other coworkers or friends who’ve been in the situation. People presume they’re alone or they’re the only one it’s happening to, but that’s not often the case.”

How do I file a complaint?

According to Kaiser, victims of workplace harassment should first consult their employee handbooks, which should explain the employer’s sexual harassment policies and specify where to direct complaints — usually it’s human resources or a supervisor.

Ideally, Kaiser said, a supervisor should address sexual harassment allegations so survivors don’t have to turn to the state or federal government.

“For these processes to work properly, that does presume a workplace culture that takes this stuff seriously and isn’t going to retaliate against complainants,” Kaiser said. “As we’ve seen from a lot of stories coming out and people giving their accounts publicly, that isn’t always the case.”

If a manager or direct supervisor is the harasser, or if no action is taken against the perpetrator, Kaiser suggests filing a formal complaint through either the Texas Workforce Commission or the EEOC.

Both allow survivors to submit complaints through their respective websites within 180 days of the incident. According to the EEOC, 12,860 sex-based harassment allegations, including sexual harassment allegations, were filed nationwide in 2016, though several experts say sexual harassment and sexual assault claims are vastly underreported.

What if I’m not sure if what I experienced was unlawful?

According to TWC spokeswoman Lisa Givens, in order to file a complaint of discrimination with the state, you must meet the following jurisdictional requirements:

• The employer’s physical address is in Texas and the company has 15 or more employees.

• The incident occurred within the last 180 days.
  

• The alleged discrimination was based on race, color, national origin, religion, sex, age or disability.

• Your complaint must identify employment harm such as demotion, denial of promotion or termination.

If your complaint does not meet these requirements, the TWC will mail you a letter formally dismissing your complaint, Givens said. If it does meet the requirements, the TWC will draft a “charge of discrimination” document and the complaint will get processed.

What happens if my complaint is approved by either the TWC or the EEOC?

Once a signed charge is received, the survivor and the accused will receive an invitation to mediation — a voluntary process that allows both parties to discuss their issues with a neutral mediator.

According to Givens, the mediator’s role is to provide assistance in resolving the dispute in a manner favorable to all parties. The mediation can take place on the telephone, in person or remotely.

If both parties accept the mediation invitation, a meeting will be scheduled. If either party declines mediation, the investigation will begin.

The investigator will conduct interviews with the involved parties and witnesses, review relevant documents, policies and procedurals, and refer to relevant state and federal laws. Based on the evidence presented and the investigation conducted, the investigator will determine whether or not there is sufficient evidence of discrimination.

If the investigation finds sufficient evidence, the agency will try to settle the matter through a conciliation agreement — which can be monetary and/or non-monetary relief, such as an employer changing its policies. Givens said if the conciliation is unsuccessful, the TWC can bring the case before its three-member commission and request to file a civil suit against the employer.

What if I decide to sue?

Taking a sexual harassment or sexual assault claim to court is a different story. For starters, survivors may not be able to speak about a case after it’s been settled if they’ve signed a confidentiality agreement with their employer. And if you want to take legal action in either state or federal court, you must be issued a “right to sue” letter from the EEOC that shows the agency has investigated the case.

Several lawyers also say that Texas, specifically, makes it easier for businesses to defend against sexual assault claims. In a recent case before the Texas Supreme Court, the justices ruled that sexual assault damages are capped at $300,000.

What if none of those options work?

If all legal avenues have been exhausted and your situation hasn’t changed, the options are limited.

“The reality is that this is what causes many people to leave their jobs. Still, for people who remain in these hostile environments, I’d encourage them to continue documenting incidents of harassment and corroborating them with any witnesses,” Kaiser said. “New incidents open the possibility for new complaints.”

What other resources are available for survivors?

Kaiser recommended seeking out support through services like the National Sexual Assault Hotline or the Rape, Abuse and Incest National Network.

“I wouldn’t shy away from seeking help,” Kaiser said. “There are people in counseling positions who talk about sexualized violence across the spectrum.