WASHINGTON, July 17, 2016 — Numerous studies conclude that approximately one third of all women between the ages of 18-34 are sexually harassed while at work. Perhaps the most recent and widely read survey, where over 2,200 women participated, was conducted and published in March 2015, by Cosmopolitan magazine.
Statistics are telling, but in this case at least are essentially meaningless. Many women simply never report workplace harassment for a variety of reasons, most notably the fear of losing their positions. One woman who answered a survey and did so anonymously said “I was raped, sexually harassed, but I was afraid to speak out, because I was taught that good girls don’t make a fuss.” Like this individual, a significant number of women simply fear that they will not be believed when they complain of sexual harassment.
Cosmo’s survey said 81 percent of women have experienced verbal harassment and 44 percent of them encountered unwanted touching. Seventy-five percent of those participating in the study said they were targeted by male co-workers, thirty-eight percent by male managers.
By any account, such inexcusable behavior is clearly significant and commonplace in today’s work environment. But it is apparently not objectionable enough for those who publicize the laws against such conduct, starting with employers themselves. “Workers’ Rights” and “What to do if you are injured on the job” posters are framed or tacked to the wall of many a copier-machine room or employee lunch room. Far fewer informational posters and literature detailing policies and prohibitions against sexual harassment are readily available.
While there are numerous laws on the books that specifically prohibit sexual harassment, laws in many states fail to protect women or certain classes of women.
Consider: As of May, 2015, only seven states had laws protecting unpaid interns from workplace sexual harassment. Such individuals are vulnerable because they are technically not “employees” under the Federal Civil Rights Act.
More stringent sexual harassment laws certainly exist, but too often claims filed under these statutes fail if the harassment is deemed not serious enough to be considered “severe” or “pervasive.” For this reason, women should learn and understand the factors that bear on whether a harassment complaint meets current legal standards in their jurisdictions. These factors include (1) how often the bad conduct occurred; (2) whether that conduct was physically threatening or humiliating; and (3) if such conduct unreasonably interfered or interferes with the complainant’s work performance.
Even a single incident can be enough to make a case. For example, courts have determined sexual harassment has occurred when:
- Pornography was found in the workplace;
- Emails were sent with sexually explicit content;
- Remarks were made about a woman’s body or sex life;
- Breasts were touched or buttocks were smacked in private, or in the presence of co-workers.
Sexual harassment should never be tolerated. Women do not have to put up with lewd comments from bosses or co-workers, nor suffer in silence while being objectified. Astoundingly, according to some surveys, two-thirds of women do not know there are legal remedies for stopping or prosecuting sexual harassment.
Constantly in search of sensation, the media often reports on criminal acts of rape, assault or molestation. Yet unless the woman is well recognized (current example: former Fox News anchor Gretchen Carlson), “less severe” forms of harassment do not make the evening news. Furthermore, verbal abuse, lewd behavior, inappropriate emails or text messages, an insinuating or suggestive Facebook message, physical touching, unwelcome comments, and comments about behavior or dress do not qualify as criminal acts.
Sexual harassment has numerous legal and popular definitions. Women, however, do not need a definition. They know when they are being harassed. Sexual harassment is any unwelcome sexual advance, request for sexual favor, or other verbal or physical conduct of a sexual nature. According to Title VII of the 1964 Civil Rights Act, sexual harassment is “conduct that makes the workplace hostile to a reasonable person either because of the severity of a few incidents, or because of the pervasiveness of even less severe conduct.”
Maya Raghu, director of workplace equality at the National Women’s Law Center says that a big reason why women do not come forward is fear. She says that as long as there is threat of job loss or of how the woman might appear to her friends and peers after making a complaint, the issue will not be resolved.
There are two types of sexual harassment. The first can be called “quid pro quo,” which is a Latin term meaning “this for that.” When a woman is subjected to unwanted sexual conduct, such as requests for favors or advances, and the employer subsequently uses the woman’s reaction as a basis for decisions affecting her job and career, the law has been broken. An example might be firing a woman from her job because she refused to sleep with her boss.
The second type of harassment, the existence of a “hostile work environment,” occurs when unwelcome sexual conduct creates an abusive, hostile, offensive or intimidating work environment. Examples are sexually offensive remarks or jokes, profanity, crude humor, displays of pornography or sexual graffiti or images, inappropriate touching, repeated requests for dates, and even simple glances. (Women know what this means.)
A victim should immediately and explicitly tell the harasser that the offending conduct is unwelcome and unacceptable and should report the harassment, ideally in writing, in accordance with the company’s discrimination/harassment policy. It’s also important to keep detailed notes and records on the incident or incidents, including dates and times of occurrence.
If the company does not have a discrimination/harassment policy, such incidents should be reported to the employee’s immediate supervisor (or that person’s superior or counterpart if the victim’s supervisor is the harasser), and to the company’s human resources department.
If addressing the issue internally is not effective, a victim may seek one or more remedies through formal legal channels, such as filing a charge of discrimination with the EEOC (the United States Equal Employment Opportunity Commission, the Federal agency responsible for enforcing Federal laws against sexual harassment); with a state agency such as a state’s Division of Human Rights; or by filing a complaint in court.
Clearly, employers should have and enforce strong anti-harassment policies that are comprehensive and include specifics of sexual harassment that err on the side of over-defining that term. Such policies should include the process and procedures for reporting such incidents as well as disciplinary measures for offenders. An effective policy document should include a highlighted, bolded provision, set in a type size larger than the rest of the document’s contact, clearly stating that retaliation against the filing employee will not be tolerated.
When relevant, specific, relevant corporate standards should also be pointed out in the policy statement. Such standards might include provisions such as the following:
Supervisors should be required to attend anti-harassment workshops. The U.S. Supreme Court recently clarified that a supervisor is anyone who has the ability to hire of fire an employee.
- Office parties should be “PG” rated. Inappropriate jokes should not be encouraged or condoned.
- Every employee should be required to read and sign the policy as a condition of employment and as a condition of continuing employment as well.
Once reported, sexual harassment complaints should be addressed immediately.
As for the individual alleging harassment, it should be noted that lawsuits are not always a solution and should be considered only after extensive consideration with an appropriate attorney experienced in these types of cases.
In the end, money cannot erase negative feelings and embarrassing or humiliating memories. In most cases, trials rarely occur in sexual harassment cases because the owner of the business that employed the offending abuser often settles prior to actually stepping into the courtroom. It’s clear that many such settlements occur out of a company’s fear that it will have to pay more than an amount they might pay by agreeing to a pre-trial settlement.
Some notable recent case settlements include the following:
- In February of this year, Cheddar Café, a Kentucky-based restaurant, agreed to pay 15 women $450,000 to settle a sexual harassment lawsuit.
- In 2013, a Burger King franchise agreed to pay 88 women $2.5 million to settle a sexual harassment lawsuit.
- In 2012, California-based Mercy General Hospital had a verdict rendered against them in a sexual harassment case in the amount $168 million.
Not all cases resolve for millions of dollars, nor will they be against Bill Cosby. The true resolution of a sexual harassment complaint would be preventing the offending action from happening in the first place.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business-consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.