Ellen Pao took the stand this week in her high profile $16 million sex discrimination case against Silicon Valley venture capital firm Kleiner Perkins. Facing a packed courtroom, she answered intimate questions about her sexual relationship with a married partner (she says she broke it off when she discovered he was still married) and her allegations that he retaliated against her for years, undermining her ability to work. The partner, Ajit Nazre, was fired in 2012 for sexually harassing another female at the company.
Pao, who is now the CEO of Reddit, appears to be doing well. But even this intelligent, high-level executive could have handled the matter better years ago, which would have more strongly positioned her for trial.
I have represented employees in harassment and discrimination cases for decades; and my law firm, The Bloom Firm, has recovered millions of dollars for victims. But we also have to turn many people away because of mistakes they’ve made which can damage or even destroy their cases.
Don’t let this happen to you. If you are the victim of sexual harassment, here are my top five recommendations to you.
1. Create a log
Who, what, when, where, why and how — keep detailed notes of every incident. You will forget later. In fact, if you’ve endured long term sexual harassment over months or years, you’ve probably actively tried to forget what happened. But your attorney will need to know. So start taking notes, now.
Leave the emotion out. Instead, include every possible factual detail. Write “for my attorney’s eyes only” at the top to attempt to protect the document from disclosure via attorney-client privilege. Even if you don’t have an attorney yet, you intend to get one in the future, right? And this was intended for her, wasn’t it? Of course it was.
2. Collect and preserve your evidence
In court, it’s all about the proof. Yes, your testimony is evidence. But so is the perpetrator’s. They are often farther up the food chain — better educated, a senior title, more experienced — and jurors may view them as more credible. The person who harassed you may be calmer and more articulate. So you need evidence:
- Save every email and text on a personal account at home.
- Make copies of your performance reviews and every positive comment you’ve received from supervisors.
- Keep copies of your calendars and call logs.
- Hold on to that in-house sexual harassment policy. I’ve often been able to use this type of policy against an employer when they didn’t follow their own rules.
When in doubt, save it.
3. List your witnesses
Witnesses will make or break your case. Who heard him say he wants to sleep with you? Who saw him try to grope you? Name, title, address, cell phone number, email address – save this info in a personal file at home for future reference. You don’t want to be in an attorneys’ office months from now saying, “Joan … what was her last name?”
4. Complain in writing
People often come to me to say they were sexually harassed at work and when they protested, they were fired. Did they complain in writing? No. The employer is then going to say they were fired for performance reasons (perfectly legal) not in retaliation for opposing sexual harassment (illegal). So it’s critical that you put your grievances in writing and, of course, save a copy in your personal files.
I highly recommend you quickly consult with a sexual harassment attorney before complaining in writing. (Your employer does not need to know about this; it’s your private business.) There are certain buzz words you should include and others you should leave out, which an attorney will know. At a minimum, you should say that you feel you were sexually harassed and describe what happened, who was present, and how it has affected you.
5. Do not sign a release before consulting with an attorney
Oh, the folks who consult with me for an hour, then throw in at the end, “I signed this …” and pull out a crumpled release form from the bottom of their bags. In most cases, that’s game over.
Employers are not stupid. They will offer you some pittance if you’ll just sign something that looks like legal mumbo jumbo to you. But signing a release generally means you are now and forever barred from suing them for known and even unknown claims. It’s extremely unlikely you’ll be able to wiggle out of it on the grounds you were tired, pressured or stressed. If you’re an adult of sound mind, a court will almost certainly hold you to that release. So don’t sign it! Instead, ask to take an unsigned copy home, then consult with an experienced sexual harassment attorney to see whether you should sign it, ask for more, or file a claim.
I’ve been there
Sure, it’s tough to be tough when you’re a victim of sexual harassment. I feel for you. I have sat in my office with many women, and some men, who were abused in disgusting ways. We go through a lot of tissue boxes.
And I myself have experienced sexual harassment, a few years ago at a television network where I worked. After I got over the shock, I followed my own advice. The company handled it appropriately, and the perpetrator was forced to apologize to me, go to counseling, and was warned against retaliating against me, which he refrained from doing. It was a successful outcome and I went on to many more happy years at that network.
Whether you stay at the company or leave and sue, it’s critical that you follow these steps and consult with an attorney as soon as possible. Take back your power. Level the playing field. Stand up for your rights to be treated with dignity. Women before us fought hard for our rights. It’s up to us to exercise them.