Workplace Harassment Survival Guide (Episode 208)

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We're so grateful to the anonymous listener who has worked in employment law. This listener offered insight on employment contract and arbitration issues after hearing us chat about it in episode 207. We shared an abridged version of that letter in episode 208, but it's worth reading the whole thing. It's shared here with the listener's permission.


Employment contracts for most people are only theoretically negotiable. Many states have “at will” employment laws, which make it sound like employees have more freedom. In practice, it means that an employer can terminate you for almost any reason. Contracts are only negotiable in theory. Quite often, entry to mid level employees have no contract and when they get one, it’s a take it or leave it proposition. Mandatory arbitration and confidentiality clauses are standard boilerplate across every field now. I’ve only successfully negotiated adjustments to these clauses for senior level employees, who have decades of experience and/or leverage: for example, an engineer with multiple patents, an investment banker whose client base who will follow him to another company, or a marketing rainmaker who brings in six figures every year. 

Arbitration is problematic because, unlike lawsuits, they aren’t required to be on the public record. So even without a confidentiality clause in the employment contract, arbitration is effectively confidential. So it’s harder for your attorney (if you can even afford one!) to find case law that supports your arguments. In addition, the arbitrator is typically paid for by the company. So arbitrators have an incentive to favor the party paying their fees in order to get rehired in the future, as opposed to helping out the little guy.

Last but not least, the legal standard for proving sexual harassment is quite high. You must prove that the harassment was “severe and pervasive” enough to negatively affect the victim’s employment and create a hostile work environment. For liability you also have to prove that the employer knew or should have known about the harassment and didn’t take prompt action to fix it. Well, that’s hard to do when HR is protecting the company. Or when you were harassed by a coworker, rather than your boss, so legally the company isn’t responsible for things that he did outside the scope of his employment. 

This is an oversimplification.There are several factors that go into a harassment claim, and several more factors going to the hostile work environment piece of it. But the gist of it all is that the odds are stacked against the victim. It’s appropriate that there be a strict standard to protect due process for the accused, but as an attorney I see that the scales are so unbalanced. Defendants play so many games in order to withhold evidence.

If you are facing any type of harassment or discrimination at work, the best thing you can do is keep a diary (at home, not at work) with dates, times, names, and a description of every incident. If you have incriminating emails, print them out and take them home. Don’t count on any work friends to corroborate your story because very few friendships can survive the threat of losing your job. If your state doesn’t have a law against recording conversations without consent, consider keeping your phone on record every time you interact with your harasser so you have some leverage for a settlement agreement. Finally, get a lawyer ASAP. If you can’t afford one, look up legal aid in your area. At the very least, you can get some free advice or a referral to a private attorney who does pro bono cases. The hard truth is that even high profile, wealthy clients like Ellen Pao are losing these claims in court. A lower income individual in arbitration has virtually no chance.

The listener sent a follow-up to add:

I never want to discourage people from exercising their rights. But suing your employer is not as easy as they make it look on TV. The risk of getting blackballed, especially in specialized occupations, is real.

However, some people do sue their employers and win, or achieve favorable settlements, even in arbitration. Most commonly these are collective or class actions. So if you are having an issue, it can be worth it to discreetly talk about it with your coworkers. There is strength in numbers, and labor laws protect employees who organize for their rights even outside of the union. The National Labor Relations Board website has more info about this, as well as instructions on how to file a complaint, which toy can do even if you signed an arbitration agreement. Be aware that right now a case is pending before the Supreme Court to decide whether class action waivers prevent the filing of collective NLRB charges (look up Epic Systems Corporation v. Jacob Lewis).

The second factor that makes for a successful lawsuit is keeping your own records. Part of that is getting everything in writing. Get a copy of your offer letter and employment contract. If you complain to HR about anything, do it in writing and print it out so you can prove you spoke to them. HR works for the company, not the employees. Conversations can always be forgotten, mis-remembered, or denied. And in legal proceeeings, “he said, she said” types of arguments are called hearsay and are generally inadmissible as evidence.

 

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