It Depends on Who the Harasser Is – But Reporting Is Almost Always the Right Strategic Move
Employees who have experienced workplace sexual harassment often assume there is a single, universal rule requiring them to report the conduct to HR before they can take legal action. In reality, whether reporting is legally required depends on who the harasser is and whether the employer already knows about the harassment. The law in this area is somewhat complicated, and the right approach can vary significantly from case to case.
Many employees considering legal action ask a version of the same question:
“Do I have to report the harassment to HR before I can sue?”
The honest answer is: it depends. In some situations, a formal report to HR is essentially a prerequisite to holding the employer legally responsible. In other situations, the law does not strictly require a report at all – although reporting is still almost always the wiser course. Understanding the distinction is an important part of protecting your legal rights from the very beginning.
Must I Always Report Harassment to HR Before Suing My Employer?
One of the most common misconceptions is that employees must always report harassment to HR before they can sue their employer.
That is not entirely accurate.
The answer turns largely on the harasser’s relationship to the company. When the harasser is a co-worker, customer, client, or vendor, the law generally requires the employee to show that the company knew about the harassment and failed to take appropriate action. When the harasser is an owner or manager, the analysis is different, and a formal report is not strictly required before pursuing legal action.
What If the Harasser Is a Co-Worker, Customer, or Vendor?
If the harasser is a co-worker, customer, client, or vendor, and you want to bring legal action against your employer, you will generally need to prove that the company knew about the harassment and did not take appropriate action.
The most effective way to establish that knowledge is to make a formal, written complaint of sexual harassment to HR or a manager. Absent some other way of showing the employer was on notice, a written complaint is often the clearest path to employer liability in these situations.
What If the Harasser Is an Owner or Manager?
If, however, the harasser is an owner or manager of the company, you are not strictly required by law to report the conduct to HR before taking legal action.
It is still highly recommended that you do so. Reporting creates a written record, gives the company an opportunity to fix the problem, and strengthens your legal case if you later sue for the company’s failure to stop the harassment. Reporting can also expose the employer to punitive damages if it fails to take corrective action once it is on notice.
What Happens When I Report Harassment to HR?
Reporting sexual harassment to HR is often the first step in seeking a resolution, and it carries several important legal consequences.
A report generally triggers the employer’s legal obligation to take “prompt remedial action.” It also establishes, in writing, that the company was aware of the conduct – which matters most when the harasser is a co-worker rather than someone in ownership or management. Importantly, employees are protected from retaliation for reporting harassment, even if an investigation ultimately concludes that the conduct did not legally qualify as harassment.
How Should I Document the Harassment and My Complaint?
Whether or not reporting is strictly required, thorough documentation strengthens every harassment case.
Good practices include documenting every incident with dates, times, and witnesses, and putting your complaint in writing to HR or a manager. It also helps to keep records of every interaction related to your complaint – emails, meeting notes, and summaries of verbal conversations with HR representatives – since these records can become critical evidence if you later pursue legal action.
If HR does not respond promptly, a written follow-up email reiterating your concerns and requesting an update creates a clear record of your efforts to resolve the issue internally. If your initial contact fails to respond or takes no action, escalating the complaint to a higher-level HR manager, the head of HR, or a member of the executive team may be appropriate, with a clear statement that the issue remains unresolved and that you expect prompt action.
Do I Have to Follow My Employer’s Harassment Reporting Policy?
If your employer has written policies and specific procedures for reporting harassment, it is generally a good idea to follow those procedures, assuming they are reasonable, and to give the employer an opportunity to promptly investigate and address the conduct.
Employees are not required by law to report harassment, and there can be legitimate personal or strategic reasons for choosing not to. However, an employee who fails to report harassment risks weakening any future legal claims against the employer. For that reason, the decision not to report should be made carefully and with an understanding of the trade-offs involved.
Should I Report Harassment to HR Right Away?
Reporting is not always the very first step, and the right approach can depend heavily on the specific facts.
If the harassment is not particularly severe, or has only recently begun, the right initial approach may be to address the offensive conduct directly with the harasser. If that does not resolve the problem, you are generally in a stronger position when you do decide to report the harassment to HR. Whether to confront a harasser directly depends on a number of factors unique to each situation, which is why this decision is typically discussed in detail with an attorney before deciding on a course of action.
Before reporting, make sure you fully understand the risks and potential pitfalls involved, and that you are protecting your legal remedies and maximizing your bargaining position rather than acting reflexively.
What If HR Fails to Act on My Complaint?
HR exists, first and foremost, to protect the company.
Many HR professionals understand that helping resolve a sexual harassment complaint is ultimately the most effective way to protect the company’s interests. Unfortunately, some HR representatives do not share that understanding and instead take a defensive posture toward employees who come forward.
If you fear retaliation, or if HR has failed to act on your complaint, that is generally the point at which you should contact an employment attorney rather than continuing to navigate the process alone.
How Do I Decide Whether and How to Report Harassment?
Whether – and how – to report sexual harassment cannot be determined by looking at a single fact.
Instead, experienced sexual harassment attorneys evaluate numerous considerations, including who the harasser is, whether the employer already has actual or constructive knowledge of the conduct, what written policies the employer has in place, how severe or recent the conduct is, and the employee’s personal and strategic goals. In most circumstances, we advise clients to report the harassment, but we also advise them on how, when, and to whom to report it, since that guidance can vary significantly from case to case.
Only after considering those factors can meaningful advice be given about the right path forward.
How The Howley Law Firm Can Help
When HR fails to address a sexual harassment complaint, it can be a deeply frustrating and disheartening experience. It is important to know that you have options, and that the failure of an internal process does not mean the end of your ability to hold your employer accountable.
At The Howley Law Firm P.C., we represent employees throughout New York in sexual harassment, hostile work environment, retaliation, and workplace discrimination cases. We help clients decide whether, when, and how to report harassment internally, and we step in when HR fails to take appropriate action.
If you believe you have been subjected to workplace sexual harassment, contact The Howley Law Firm today for a confidential consultation. The consultation is free and confidential. We can evaluate your situation, explain your reporting obligations and options, and help you protect your legal rights from the very beginning.
John Howley spent nearly two decades at Kaye Scholer LLP defending companies such as Pfizer, Citibank and Sony, and we now represent employees against companies like them.
Call us at (212) 601-2728. We take most cases on contingency, so you pay no fee unless there is a recovery.
