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0:00:08.6 Jackie Strohm: Welcome to PA Centered, a podcast designed to help listeners be a part of the solution to end sexual harassment, abuse, and assault. Each episode, we will take on a topic or a current event to help spark conversation and break down barriers to building communities free from sexual violence.

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0:00:32.0 JS: Hi, I'm Jackie Strohm, the Prevention and Resource Coordinator at the Pennsylvania Coalition Against Rape. I'll be your host today as we're joined by Konrad Jarzyna and Lisa Matukaitis from PCAR Sexual Violence Legal Assistance Program or SV LAP, to learn about your rights if you experience sexual harassment in the workplace. Welcome, Konrad and Lisa.

0:00:55.8 Konrad Jarzyna: Good morning, Jackie. Good morning, Lisa.

0:00:57.8 Lisa Matukaitis: Good morning, Jackie and Konrad.

0:01:00.7 JS: So just so everyone knows, PCAR Sexual Violence Legal Assistance Project provides free legal representation to the survivors of sexual assault throughout Pennsylvania with regard to a variety of legal issues. One of those areas is employment discrimination, which often intersects with other matters such as protection orders, housing, or criminal advocacy, just to name a few. During today's episode, we will be sharing some stories that include descriptions of sexual violence. Please take care of yourself while listening. So to get us started, I thought you all could share with us the definition of sexual harassment and maybe give us some examples.

0:01:44.9 KJ: Sure. So, excuse me, according to the Equal Employment Opportunity Commission, known as EEOC, sexual harassment is defined as unwelcome sexual advances, requests for sexual favors, unwelcome touching, sexist or sexual remarks or jokes, and/or other verbal or physical conduct of sexual nature that directly or indirectly affects the victims negatively at work. So besides this formal definition, Lisa, do you have any more specific examples that you can give us to illustrate this? 

0:02:23.3 LM: Sure. Some examples of sexual harassment in the workplace might include sending sexually suggestive emails, memes, text messages, notes, things like that. It might be voicemail messages, it might be sharing inappropriate pictures or videos, posting pictures of naked women in the workplace, although that doesn't happen that much anymore, it still does happen. Asking questions about somebody's sexual history or their sexual orientation could be considered discrimination based on sex or sexual harassment, making offensive comments about somebody's sexual orientation or gender identity, and making sexual comments about the way somebody looks, how they're dressed, their clothing, their breast size, their body parts, all those things are inappropriate in the workplace and may constitute sexual harassment. Although the actions don't have to be sexual in nature, it also can include promises like a raise or a promotion in exchange for sexual favors. I've had cases in the past where a female employee was forced to submit to oral sex in order to keep her job, and not just oral sex, in other cases, but basically having to submit to an employer's or a supervisor's sexual advances in order to get a raise or a promotion, or to keep their job. We call this kind of sexual harassment quid pro quo sexual harassment.

0:04:05.2 JS: And I guess I've heard in the past that the sexual harassment has to be severe and pervasive. So could you talk a little bit more about what those words mean? 

0:04:16.5 LM: The harassment has to be severe or pervasive, it doesn't have to be severe and pervasive. Courts generally have said that like simple teasing in the workplace, offhanded comments, isolated incidents that aren't really serious don't constitute workplace harassment or a hostile work environment. That the comments or the actions, the conduct has to be frequent and frequent means pretty much any time you come into work, you're subject to these comments or these remarks, and it happens on a regular basis. Severe means that there has been an inappropriate touching of somebody's breasts, buttocks, back, shoulders, somebody who has been sexually assaulted at work. That would be a severe form of sexual harassment. So courts have said that Title VII isn't a general civility code for the workplace. The sexual harassment, in order for it to be actionable, has to be severe or pervasive. And it can also come from a non-employee, it can come from a co-worker, it can come from a supervisor. So in one case, a cocktail waitress working in a casino alleged that she was sexually assaulted at work by a casino patron.
 She said that the customer put a casino chip in her bra and touched her breasts. The employer got her complaint and took their action by banning the harasser from the casino for 40 days. The employee brought suit saying that she was sexually harassed at work and it went to a jury trial, not very many cases go to a jury trial, but this one did. The jury found that the employer's response by banning this harasser from the casino for only 40 days was insufficient and awarded her over $1 million. So it does seem that courts and juries around the country are starting to recognize sexual harassment as really a major concern in our society, and that it needs to be changed and jury verdicts like this really are showing the way that society is taking sexual harassment more seriously than it had in the past.

0:07:00.5 KJ: So, in these cases, I'm sure before, it took a long time for this case to go to a jury trial, and I would imagine that this particular waitress did a great job documenting what happened to her and it cannot be emphasized enough how important it is to document the case. So, if someone feels that they're being sexually harassed or discriminated in the workplace, it is so important to keep everything, every piece of communication, every email, text message, screenshots. If the communication is nonverbal, to maybe even just keep a journal with dates, names, short summaries of the conversation. If you notice someone observed what happened to you, again, write down their name, contact information. If there are any subsequent or communication with that person, also, keep that.

0:08:11.2 KJ: Usually in our profession, we say less is more, but when it comes to documentation, it's never enough. Let your attorney or whoever... If you're gonna represent yourself before the administrative agency or a judge, let them determine what is relevant, what is not relevant, because you may be surprised that some piece of evidence that doesn't seem significant is the key piece of evidence that just basically links everything together in your case. So again, just paper trail, paper trail. Make sure it's somewhere safe where no one has access to it, wouldn't share it with anyone, and even if you do submit a complaint or a grievance within your company, do not submit the originals, make sure you just provide copies and all the originals stay with you.

0:09:10.3 JS: Konrad, I've had situations where employees who are experiencing sexual harassment think... I don't have that any evidence of this. Nobody's gonna believe me, this is a he said, she said. And they take out their iPhone and they say, the next time he does this to me, I'm gonna record it. What do you think about that in the workplace? Is it okay to record somebody in the workplace, even if it's for the purpose of documenting sexual harassment? 

0:09:43.7 KJ: That's a tough one in Pennsylvania, in general, you need consent of both parties in order to be able to record the communication. But I would say if you say, I'm going to record it, and the person that is being recorded is the one you said it to or who gave him heads up or... You said that I'm turning it on and they continued. You have a good argument that the person consented to the conversation, being recorded. So I wish there would be a black and white answer to it, it's a little gray-ish, depending on the, we always say it depends, it depends, but it really does. So I'd be careful with that. If you do record someone, don't share the recording with anyone, recommend that you speak to an attorney and let her or him determine if this would be a good piece of evidence or it's something you should need to erase.

0:10:53.5 LM: It's also important to remember that if somebody is experiencing sexual harassment at work, they have to check their employee handbook and their workplace policies or their collective bargaining agreement, if they're a unionized employee. Most employers, not all, but most employers have some kind of anti-sexual harassment, anti-discrimination, anti-retaliation policy in their employee handbooks, and typically those policies are gonna say, "If you're experiencing sexual harassment or discrimination in the workplace, you should report it to your supervisor, or they'll usually identify somebody in human resources who you can make the report to. And then the employer, once they receive that complaint or notice of potential or allegations of harassment or discrimination, the employer has a duty to take prompt and effective remedial action, and usually that's gonna entail the employer doing some kind of investigation.

0:11:55.6 LM: And their investigation may be interviewing the alleged harasser, interviewing the employee who's alleging harassment, maybe looking at documentation, but in a lot of situations that I've seen, and I've been doing employment law for over 10 years, the employer may suspend the alleged harasser usually with pay for a short amount of time while they're doing the investigation. That's a best practices for the employer to do that, and if they do find that there was some kind of violation of their policies, their anti-discrimination, anti-retaliation policies, an employer typically will try to take remedial action. What does that look like? It could vary. They may send the harasser to training. I've seen that in a lot of cases.

0:13:02.2 LM: They may shift the alleged harasser to a different position so that that person's no longer supervising the victim of the sexual harassment. But depending on what remedial action to take, the employer decides to take, and they may decide that nothing happened, that there was no harassment, there was no discrimination, and that they don't have to do anything. But the key word is effective and you have to take action to try to stop the harassment from occurring in the future. I've had situations where you have serial sexual harassers and the employer doesn't do a thing to the alleged harasser, they just allow this person to keep harassing employees. They may move them to another position and the person does it again and again and again, and in that situation, you really have an employer who's failing to take prompt and effective remedial action to protect their employees in the workplace. And if employees that are harassed by a serial harasser, do bring action, that kind of situation could result in a punitive damage award.

0:14:21.2 JS: So, what could happen if someone complains of sexual harassment at work? And more specifically, what if someone is scared to report the sexual harassment? 

0:14:32.2 LM: I would say if you're experiencing sexual harassment at work, call an attorney. We're here to help. We're here to help victims of sexual harassment in the workplace, we can help you decide when to report it, and that's your choice to report it or to not report it. We can help you figure out a plan on how to report it, to whom you should report it to, and guide you through that process. It's very hard coming forward with allegations of sexual harassment, people are afraid to lose their jobs, they're afraid that they're gonna get demoted, they're afraid that their hours are gonna be changed, they're afraid that they're gonna be considered complainer or bad employees. So, it's a huge step, huge step, for people to say, to bring this to light and to make their employer aware of it.

0:15:29.9 KJ: And it's important to note that the... Hopefully obvious for everyone, that the employer is not supposed to retaliate, and they're separate protections for employees who are subject to retaliation. I believe that around 40% of claims processed by EEOC are actually retaliation oriented, and there could be severe penalties that come with that. If someone reports a sexual harassment or discrimination, and then they do lose their job as a result of that, or their hours are cut or they're being re-assigned to another position or a different shift that the employer knows is not good for them because of their family situation, they got kids or something.

0:16:23.7 KJ: And in those cases, you don't even have to prove that the sexual harassment or discrimination actually took place, that's not prerequisite, employer could be successful proving that there was no harassment or discrimination, but if they retaliate because you did assert your rights and filed a complaint, put it simply they could get in a lot of trouble. So, you do have protections and they kick in immediately regardless of the merits of your case, and it's something important to be aware of.

0:17:00.7 LM: That's true, that a lot of times we see that the retaliation claims after somebody complains or gives testimony to the EEOC or something like that, if they're retaliated against, the retaliation claims are usually more successful than the underlying discrimination claim. And I think that's why the cases are so high at the EEOC, of all the... Like Konrad mentioned, of all the discrimination or retaliation cases are the highest number of cases that are brought at the EEOC. But usually when we see retaliation, we wanna look at a pattern, we call it causation.

0:17:40.9 LM: So, employee engage in protected activity like going to HR and complaining about sexual harassment, and then within a short amount of time after engaging in that protected activity, some kind of material adverse action happened and that affected the employees, that affected the employee's job or would dissuade another employee from participating in the EEO process.

0:18:10.5 LM: I've had situations too that come up where a co-worker who has observed the sexual harassment has gone to HR and complained of sexual harassment. We call it third party or bystander complaining, participating in the EEO process, and where the employee who was maybe too afraid to complain to HR, they had another employee go to HR on their behalf, and I've seen situations where the employee has... The employer has fired that third party employee for sticking up for the rights of a co-worker. So, those kind of claims can be brought as well, at the EEOC or the PHRC, but it is very, very important for an employee to follow their employee handbook, the policies and procedures that are in place and give the employer an opportunity to respond. If the employer doesn't take an effective response, the employee has a couple of options, they could quit their job and maybe file for unemployment compensation benefits, maybe try to negotiate some kind of separation from the employer or maybe try to negotiate a different workplace assignment if it's really interfering with their ability to do their job to be in that situation.

0:19:48.0 LM: But let's assume... Yeah, let's assume an employee does go to HR, going to HR isn't like filing a formal complaint. In order to preserve your rights to bring some kind of discrimination claim in the future, say you wanna preserve your rights to file a sexual harassment claim against this employer, you have to go to a federal or state agency and actually file a formal complaint, you have to do that within 180 days in Pennsylvania of the adverse action, which is a short amount of time, that's six months. A lot of people think, "Hey, I filed the complaint, I went to HR, I notified HR, and I filed a complaint." HR typically isn't gonna tell you that you also have to go outside the employer and file a complaint with the state or federal agency. Like I said, in Pennsylvania, it's 180 days to preserve your rights and under federal law, you have 300 days. And if you're in Pennsylvania, typically you would file a complaint with the EEOC in Philadelphia or Pittsburgh or the PHRC, which has its main headquarters in Harrisburg.

0:21:07.9 JS: So what happens next then, like if you do pursue filing a complaint with one of those organizations, what happens next? Is there a mediation process? When does it go to court? What does that look like? 

0:21:23.7 KJ: So once a... Excuse me. Once a complaint is filed, let's say with the EEOC, the agency will notify the employer and give the employer a chance to respond to the complaint, the employer and employee, and then the complaint will be investigated, and if the employer and employee agree the case may be submitted to a mediation through EEOC, and some EEOC could conclude that there are no basis for the complaint, and it will never get to mediation but a lot of cases of mediation takes place, I think the system is set up to get these cases resolved and keep them from federal courts. So mediation... Before I get into EEOC mediation, just a note that when we talk about HR and then handling those internal complaints, I think you... It's important to speak, have an attorney just because sometimes they think the employer could offer mediation and that could be a dangerous thing because that could seem formal and designed to help you and give you a forum to address all these issues. But it has nothing to do with EEOC, it has nothing to do with the state agency. It could be just internal way of trying to keep these issues basically under the rug, that leads you to the maybe potentially signing documents, waiving your rights that would prevent you from then pursuing your claim and through EEOC or later in the court system.

0:23:13.8 KJ: So if something like that is offered, I would say it's almost like your insurance company contacting you and trying to settle a claim, of course, they look out for their best interests, not for your best interests. So that's why it's important to have an attorney or someone that you can ask, and sometimes it could be a reasonable and a good way to address the conflict because maybe you just don't want to go through the lengthy process and just... Considering your approach to it and what happened, it may be a perfectly fine resolution to the problem, but it's important to be careful because it will involve signing documents, and you never want to sign anything without consulting with an attorney first. So as far as EEOC process, for a case to go to a mediation, both parties have to consent to it, and then a neutral third party mediator is selected and meets together with the parties, encourages them to communicate their concerns and basically works with them to create an agreement that will end the conflict, so it's not as adversarial as court proceedings are.

0:24:35.1 KJ: It's, again, it's mediation, so it's a lot of shadow diplomacy, the mediator talks to the employee, the mediator talks to the employer, and most of the cases do end at this stage, and the parties then don't have to testify in courts, they don't have to go through cross examination, deal with the litigation-related stress in general, it's lengthy, it's not fun, and this is a good way to just make it end. And the process can... I'm sorry. And important to keep in mind that the mediation is free and most of all confidential, so basically, the case ends, it's either litigate and basically now it doesn't become case law where someone out there is reading about what happened to you, people aren't talking about it, you didn't have witnesses who participated in the trial that they will then going back to... Usually it's your co-workers or people that are higher up that may be involved in litigation, so.

0:25:45.2 KJ: So once you reach the agreements, both parties will basically sign agreement that they will not disclose anything that happened during the mediation, including the results of the mediation or what's in the agreement, and speaking of all these agreements that people usually assume that it's just money. You agree on said amount of money and the case settles, but these agreements can involve a lot of other things, so other than receiving money damages, you could be reinstated at work, you could get your job back if you lost it as a result of what happened to you... It could be maybe reinstated at your previous position if you were demoted, the employer could agree to change its sexual harassment policy, so you're filing it's not only going to benefit you, but it'd be...

0:26:45.5 KJ: A lot of times will benefit other current and future employees because you called them out and now they have to be careful and they change their policy and they know they have to stick by it, and also it could involve re-training or training of the staff or supervisors, of everyone in the company, because maybe a lot of these employers, they do some training the day of orientation and then people are there 10, 15 years later without any additional training, but the law changes. A lot of things change out there, and it's important to keep these things fresh. So again, the mediation can be very, very helpful and have impact not only on the person that is pursuing the claim, but many, many other employees in the company. Especially if it's a big company.

0:27:46.7 JS: It's helpful to know that it doesn't always go to court like you see in TV shows or in the movies, but that it can be settled through mediation.

0:27:56.0 KJ: Yeah, very few cases... Lisa probably has more of a... She can provide better... [chuckle] Give us a better idea of how many cases or percentage of cases actually end up being litigated.

0:28:08.3 LM: Yeah, I think it's less than 1% of discrimination cases ever go to a jury trial, and that's... In the middle district in Pennsylvania, it's very rare that a case is going to make it all the way through the court system, either it's gonna be resolved or get dismissed along the way, but I think it's really important for somebody who's experiencing sexual harassment at work, especially if they're a survivor of any kind of sexual assault or trauma to just try to take care of themselves, because going through this experience at work can bring up memories of past events and trigger physical, psychological responses that they weren't just anticipating, nobody asked to be sexually harassed at work. So it's important to reach out to either advocates, we're trauma informed lawyers here at PCAR, and we're here to listen and to help. If you need to take time off of work, if you're experiencing sexual harassment, there are ways to take time off of work, maybe take FMLA leave after consulting with your doctor, if that's what they think you should do, but it's really, really important to reach out to get support, there are people to help. And we are here to support survivors in any way that we can.

0:29:45.9 JS: So are there things that employers and workplaces can do to prevent sexual harassment from occurring? 

0:29:55.9 LM: Employers have a duty to try to prevent sexual harassment from occurring in their workplace, the employers should have policies, they should have training for all employees, they should have training for supervisors, they should have an effective complaint procedure in place, and they should take allegations seriously and sometimes employers will engage outside investigators to do a neutral investigation if there is a complaint of sexual harassment, or any other kind of hostile work environment harassment in the workplace, but employers really should have ongoing training, policy review, updating their employee manuals and things like that. Jackie, do we have at PCAR, a training program for employers if they need assistance? 

0:30:53.7 JS: We do, it's called Respect At Work, and it's an employee training program that can help organizations prevent sexual harassment and abuse by developing work environments that are safe, healthy and respectful. And so what's different about Respect At Work than some other sexual harassment trainings that folks may have gone through, is that we really believe it needs to be more than liability-focused training on definitions and policies, but instead we wanna be working towards shifting norms and changing behaviors to really create that culture of safety, equality and respect.

0:31:31.8 JS: So we have customized trainings that can be designed to meet the specific needs of workplaces while protecting against behaviors that are experienced as disrespectful or harassing, and we also have a team of folks who can ensure that your company's processes and procedures are up-to-date by doing this hands-on review of policies and collaborating with your human resources staff, and we've been able to work with a wide range of business industries or non-profit organizations, and it can be an employer of any size, and so we really encourage you to reach out to PCAR if you wanna learn more about our Respect At Work training program, because we can do this both on-site or online, and we would love to customize that for your organization.

0:32:20.3 LM: So are you still able to do that training during COVID, Jackie? 

0:32:24.4 JS: Yep, absolutely. We are able to do things all online, whatever kind of platform your organization is using right now, and hopefully at some point we'll be able to get back to some of that in-person stuff, but it's really great because we have a network of advocates trained all throughout the State of Pennsylvania to do this. So regardless of where you're at in the commonwealth, we have folks who can help.

0:32:48.3 LM: Thank you.

0:32:50.5 KJ: Excellent.

0:32:52.1 JS: Yeah, so my last question is really just that if someone is experiencing sexual harassment at work, how can they get in touch with the SV LAP for help? 

0:33:05.7 KJ: They can simply call our number, we have a separate number within PCAR, it's 717-901-6784, and when they call this number, they... Typically, you go through the intake process where you do the conflict check, and then you're assigned to one of the attorneys, we have private attorneys in our team and once you're assigned to an attorney, one of us typically will reach out and shortly after the intake and do the initial consultation, just to get an idea what the issues are, answer any questions that you have and then make recommendations, but you make decisions, so each case you're the boss, we're not going to tell you what to do, how to deal with... We can give you the tools to make an educated decision that you have to feel is best for you, and we'll follow your lead.

0:34:09.1 KJ: What's important is that this is confidential, strictly, strictly confidential, there are different things that govern that, so when you talk to us, we cannot talk to anyone about it, disclose it, unless you would allow us to do so in writing. But other than maybe talking about the case among ourselves within the team, your information, your name, number, doesn't go anywhere and so it's better ask and get an answer sooner than later because sometimes we can just give you some maybe tips on like, "Hey, I mentioned earlier about getting the documentation," and the best way to do it, the best way to preserve it, we can review the employee manual or your handbook and then give an idea what process or procedure you should follow and of course, we can assist you if you would like us to do that. So for anyone out there, feel free to reach out, be more than happy to work with you.

0:35:15.6 JS: And it's free, right? 

0:35:17.0 KJ: It's absolutely free.

0:35:18.7 LM: All free.

0:35:19.8 JS: Awesome. Alright, well, Konrad and Lisa, thank you so much for joining us to talk today to learn about our rights if we experience sexual harassment in the workplace.

0:35:31.9 KJ: Thank you for having us.

0:35:33.1 LM: Thank you Jackie. [chuckle]

0:35:34.4 JS: Alright, that's all the time we have today. Thank you everyone who listened to this episode of PA Centered. You can learn more at pcar.org, or contact the SV LAP at 717-901-6784.

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0:35:57.2 JS: If you or a loved one needs help, a local sexual assault center is available 24/7, call 1-888-772-7227 for more information or find your local center online at pcar.org. Together, we can end sexual violence, any views or opinions expressed on PA Centered by staff or their guests are solely their own... And do not necessarily reflect the opinions of PCAR or PCAR's funders.