Sexual Harassment -The Power of Sexually Harassing

Criminal verdicts in high-profile sexual assault cases against entertainer Bill Cosby and movie producer Harvey Weinstein are helping the broader public understand the decisions women might make when someone in a position of power is sexually harassing them. According to victims’ advocates, those convictions could affect future sexual harassment cases by showing that the fear of financial retribution often prevents survivors from behaving as juries might expect. Revelations brought forth by the #MeToo movement also have increased the public’s understanding of the pervasiveness of sexual harassment in the workplace. Meanwhile, the federal government and state legislatures are taking steps to prevent workplace sexual harassment, while employers are seeking ways to better educate workers on how to prevent and report such conduct.

“I just thought that it was something you would have to put up with,” she told The New York Times. Initially, Brittany Hoyos, 16, did not tell her parents about the inappropriate behavior of her manager at the Tucson, Ariz., McDonald’s, where she worked after school in 2016. Instead, she rebuffed his advances, which included touching her hair, texting her about her appearance, brushing up against her and trying to kiss her.

The trouble began after Hoyos came home from work crying, and her father called the restaurant to report her manager. Although Hoyos had been named employee of the month and was expecting a promotion, she was demoted and later fired.

Hoyos eventually filed a complaint against McDonald’s with the federal Equal Employment Opportunity Commission (EEOC), alleging workplace sexual harassment — one of 25 such complaints filed against the fast food chain last year that the commission is reviewing.

A McDonald’s spokesperson said in an email that the company and its franchises “are dedicated to ensuring that their work environment is free from all forms of discrimination and harassment” and that the company has “demonstrated our continued commitment to this issue by consistently offering various Safe and Respectful Workplace Trainings.”

The EEOC, which investigates all types of employment discrimination, defines sexual harassment as “unwelcomed sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature” against an employee. Such behavior is considered a civil rights violation under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, among other things.

Hoyos’ litigation is being financed in part by the $25 million TIME’S UP Legal Defense Fund, a group created in 2018 in response to the #MeToo movement that encourages women to report their experiences with sexual harassment or abuse. Administered by the National Women’s Law Center in Washington, D.C., the fund has helped more than 4,000 mostly low-paid workers who say they were sexually harassed find legal support.

Emily Martin, vice president for education and workplace justice at the law center, says that sexual harassment usually is perpetrated by a person with authority over the alleged victim. “Sexual harassment is an exercise of power,” she says. “If you’re a farm worker, someone working in a big-box store or restaurant, you’re at an increased risk of being harassed because your harasser could think to herself or himself, ‘What is she going to do about it? No one is going believe her. She needs this paycheck enough that she won’t speak up.’ ”

As a result, say legal experts, workers harassed by their supervisors often feel they need to stay in that person’s good graces to receive a paycheck, a promotion, even a reference for another job. As a result, they are often reluctant to report the harassment when it first happens, which often has worked against accusers during subsequent trials.

The inclination to stay in contact with a harasser is also common among survivors of sexual assault if the attacker is in a position of power, experts say. That tendency was demonstrated in two recent high-profile rape cases — one involving Hollywood producer Harvey Weinstein and the other entertainer Bill Cosby. Both men were found guilty of sexual assault — Weinstein in 2020 and Cosby in 2018 — after dozens of women came forward with allegations against them.

Weinstein had also been accused of sexual harassment and abuse by dozens of women, and his former film company had negotiated a proposed $25 million civil settlement with them. But in July, federal Judge Alvin K. Hellerstein of the Southern District of New York rejected the settlement, complaining that $12 million would go toward legal fees for Weinstein and his former company directors. The judge also blocked the women from filing a case-action suit, requiring each of them to file an individual suit.

Requiring each woman to file her own suit could become a barrier, Martin says, because some individuals may decide they “are not able to fight that fight” on their own. However, she says, the cultural change in attitudes toward sexual harassment triggered by the class action suit cannot be undone.

“By sharing their stories and experiences, the Weinstein survivors helped move the #MeToo movement forward in a profound way,” Martin says. “I don’t think anything that courts do now has the power to put the genie back in the bottle.”

Victims’ advocates say the Weinstein and Cosby convictions could affect future sexual harassment cases by helping the public understand that survivors often do not behave as juries might expect them to. “Both those criminal verdicts, but more broadly the #MeToo movement and high-profile women speaking out about how they experienced sexual harassment and why they didn’t feel they could speak out at the time, have been tremendously helpful for the broader public to [understand] the decision that people make in this situation,” Martin says.

In the case of allegations of workplace sexual harassment, which is a civil offense, if the EEOC finds reasonable cause to believe that such charges are true, it issues a “right to sue letter” authorizing the employee to file a lawsuit in federal court within 90 days. In a small percentage of cases, the EEOC files suit on behalf of the employee. In the small number of sexual harassment complaints that include allegations of sexual assault — a criminal offense — the EEOC informs employees that they can file complaints with law enforcement authorities.

Biden strongly denied Reade’s accusations in a written statement, saying, “They aren’t true. This never happened.” He added: “While the details of these allegations of sexual harassment and sexual assault are complicated, two things are not complicated. One is that women deserve to be treated with dignity and respect, and when they step forward they should be heard, not silenced. The second is that their stories should be subject to appropriate inquiry and scrutiny.” In other high-profile sexual misconduct incidents, in April 2019 eight women accused former Vice President Joe Biden, now the presumptive Democratic presidential nominee, of inappropriate touching. One of them, Tara Reade, was employed in Biden’s Senate office at the time the alleged misconduct took place. In March 2020, Reade claimed Biden sexually assaulted her in 1993.

During the 2016 presidential campaign, at least 25 women alleged that President Trump had sexually harassed, groped or assaulted them in the past. Trump denied all of their claims, called them liars and threatened to sue them. He has not yet sued any of his accusers. When journalist E. Jean Carroll and Summer Zervos, a former contestant on Trump’s “The Apprentice” TV show, tried to sue Trump over sexual misconduct allegations, Trump asserted he cannot be sued in state courts while he is president.

Federal Efforts

The EEOC received 7,514 sexual harassment complaints in 2019, up from 6,758 in 2016, but found reasonable cause in just 4.5 percent of the 2019 cases — down from 5.7 percent in 2016.

The EEOC filed 87 Title VII cases in federal district court in 2019, compared to 46 cases in 2016, and resolved 96 cases in 2019, compared to 84 cases in 2016. Sometimes suits filed in one year do not get resolved until a subsequent year.

After Trump was elected, the chair of the commission shifted from Democratic to Republican control. The new chair, Janet Dhillon, has worked as general counsel for Burlington Stores, Inc., J.C. Penney Co. Inc., and US Airways.

During her Senate confirmation hearing in 2019, some groups, such as the Leadership Council of Civil and Human Rights, questioned Dhillon’s commitment to putting the rights and welfare of employees first, given her long career representing private corporations.

But Dhillon told the senators: “In my prior roles in the private sector, I have seen the EEOC in action — and the positive impact that it has had on workforces across the country. If I have the privilege of being confirmed as chair of the EEOC, I would work to build on the agency’s legacy to tackle workplace discrimination, seeking to strike a careful balance between enforcement and compliance assistance.”

Advocates for harassment victims worry that the Trump administration may try to overhaul rules governing workplace harassment similar to the way the Education Department recently overhauled rules adopted during the Obama administration for how schools handle allegations of sexual assault and harassment under Title IX of the Education Act Amendments of 1972, which prohibits sex discrimination at federally funded institutions. Some victims’ advocates say the new Trump administration rules, which narrow the definition of sexual harassment to unwelcome conduct that is “severe, pervasive and objectively offensive,” will have a chilling effect on students coming forward to report sexual misconduct on campus. The new rules also require colleges to hold in-person hearings where accusers and the accused can be cross-examined to challenge their credibility.

“The new rules demonstrate an insistence to sympathize with the individual identified as the harasser rather than taking into the account the person being harassed,” Martin says.

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The Education Department says the new rules were necessary to restore due process in campus proceedings. “Too many students have lost access to their education because their school inadequately responded when a student filed a complaint of sexual harassment or sexual assault,” Education Secretary Betsy DeVos said.  “This new regulation requires schools to act in meaningful ways to support survivors of sexual misconduct, without sacrificing important safeguards to ensure a fair and transparent process.”

Congress in 2018 acted to protect congressional employees from sexual harassment by its own members. Among other changes, members of Congress now must pay out of their own pockets to cover the cost of settlements and court judgments brought against them for sexual harassment. Previously, such fees were paid through the taxpayer-funded accounts that members use to pay for office salaries and expenses.

However, a House proposal to prevent private-sector employers from requiring workers to sign non-disparagement or nondisclosure agreements (NDAs) has not made it out of committee. This bipartisan bill would block the use of employment contract clauses that make it illegal for employees to disparage a company or discuss any workplace disputes, including sexual harassment claims. The bill’s sponsors say such agreements allow harassers to quietly settle their cases.

For instance, 15 former female employees for Washington’s professional football team recently accused some top team executives of sexual harassment and verbal abuse. Only one woman came forward to discuss the allegations in public. The others feared litigation because they had signed NDAs that forbid them from speaking negatively about their employer. The team has hired an attorney “to conduct a thorough independent review of this entire matter and help the team set new employee standards,” it said in a statement.

Martin predicts that case could put pressure on Congress to act. “Whenever you have these high-profile stories where NDAs are part of what facilitated a long-time culture of abuse and exploitation, that helps to build a demand among the public and policymakers for meaningful reform in employers’ ability to enforce secrecy,” she says.

Sexual harassment is also a major problem in the military, according to a Defense Department report released in May 2019. It found that one of every 16 military women reported being groped, raped or otherwise sexually assaulted within the last year by another service member. “The Report on Sexual Assault in the Military” estimated that 20,500 instances of “unwanted sexual contact” occurred in fiscal 2018 in the Army, Navy, Air Force and Marines — up 38 percent from the previous survey in 2016. In response, Patrick M. Shanahan, then acting secretary of defense, proposed additional training and tracking methods, including the Catch a Serial Offender Program, aimed at identifying repeat offenders even if victims do not report them.

More recently, women in the Army began sharing their stories of sexual harassment on Twitter under the hashtag #IAmVanessaGuillen, after the dismembered body of Spc. Vanessa Guillén, a soldier based in Fort Hood, Texas, was found buried in multiple graves. She had been missing since April, shortly after telling her family she was being sexually harassed by a fellow soldier.

The alleged harasser, Army Spc. Aaron David Robinson, killed himself on July 1 as police were about to arrest him for the murder.

State Actions

Since the #MeToo movement emerged in 2017, 19 states have made it easier for victims to sue their employers by, among other things:

  • Limiting or prohibiting employers from requiring employees to sign nondisclosure agreements as a condition of employment or as part of a settlement agreement;

  • Expanding workplace harassment protections to include independent contractors, interns and graduate students;

  • Extending the statute of limitations for filing harassment or discrimination claims; and

  • Requiring employers to adopt anti-harassment policies and provide training for employees on those policies.

Employer Actions

Ally Coll, president and cofounder of The Purple Campaign, a Washington-based nonprofit focused on ending workplace harassment, is working with companies such as Amazon, Airbnb, Expedia and Uber to identify employers that are going beyond the legal requirements to prevent workplace harassment. The campaign hopes to release a corporate certification program later this year that will rate companies according to six criteria:

  • Transparency — How forthcoming is the company about its anti-harassment policies and how does it respond to issues when they occur?

  • Training — Is the company training employees to clarify what behavior is inappropriate?

  • Reporting — Is the company breaking down traditional barriers to reporting harassment? For instance, are there options for anonymous reporting?

  • Internal procedures — Does the organization have fair, balanced and clear procedures for responding to a report of harassment?

  • Intersectionality — Does the company address other, nonsexual forms of discrimination and harassment, such as racial and gender discrimination?

  • Gender diversity — Does the company have a diverse leadership team, including women in leadership positions.

Coll says many companies focus their anti-harassment workplace policies and training only on what is illegal. But, she says, “Even if every employee behaved in a way that was strictly not illegal, you could still have a range of behaviors that create a toxic culture.”

She recommends that companies show employees how to be an active part of the solution — either by reporting harassment they observe or by disrupting inappropriate behavior when they witness it.

Steve Paskoff, CEO and founder of ELI Inc., a global workplace-training firm, says the problem is not a lack of information about sexual harassment prevention but “a lack of motivation.” A former trial attorney for the EEOC and a partner in a labor and employment law firm, Paskoff says, “A lot of what training does is repeat things people already know, but, for one reason or another, people don’t follow it. Just repeating what people know and expecting them to change doesn’t work.”

Chronology

2018
July A bipartisan bill is introduced in the U.S. House that would block the use of common clauses found in employment contracts that make it illegal for employees to disparage a company or discuss workplace disputes, including those involving allegations of sexual harassment.
September Entertainer Bill Cosby, the first celebrity convicted of sexual assault since the beginning of the #MeToo movement, is sentenced to three to 10 years in prison after being found guilty of drugging and sexually assaulting Andrea Constand in 2004. Constand was working at Cosby’s alma mater, Temple University, at the time. The verdict could affect future sexual harassment cases by helping the public understand that survivors often do not behave as juries might expect them to due to fear of financial retribution, legal experts said.
December After revelations that nine members of Congress have given up their seats after being accused of sexual harassment or misconduct, Congress passes legislation requiring members to pay for their own court judgments and settlements in such cases.
2019
February Time’s Up Legal Defense Fund CEO Lisa Borders resigns after sexual misconduct allegations are made against her son, Garry “Dijon” Bowden Jr. He denied the allegations.… A former 2016 campaign staffer for President Trump, Alva Johnson, files a federal lawsuit against the president claiming that he kissed her on the lips “without her consent in the middle of a Florida work event and in front of numerous other campaign officials.”
March New Jersey bans mandatory nondisclosure clauses in settlement agreements involving workplace discrimination, harassment and retaliation claims.
April Eight women say former Vice President Joe Biden made them feel uncomfortable when he touched them inappropriately.
May The Defense Department releases a report that finds one out of every 16 military women reported being groped, raped or otherwise sexually assaulted within the last year by other service members.… Workers filed 25 sexual harassment complaints in 20 cities against McDonald’s.
June Oregon Gov. Kate Brown signs legislation that prohibits employers from entering into confidentiality agreements with employees involving claims of discrimination, harassment or sexual assault.
July A new Virginia law restricts the scope of nondisclosure and confidentiality agreements between employees and employers regarding the disclosure or concealment of sexual assault claims.… New York state eliminates its “severe or pervasive” standard for sexual harassment claims in favor of a less stringent one: whether the conduct subjects an individual to “inferior terms, conditions or privileges of employment” based on his or her membership in a protected class.
August The Illinois Legislature voids any contract provision that would, as a condition of employment or continued employment, prevent employees or prospective employees from disclosing truthful information about discrimination, harassment or retaliation.
2020
January Cosby asks the Pennsylvania State Supreme Court to review his conviction. The court in June decides to re-hear two of Cosby’s arguments.
February A New York state court jury finds movie mogul Harvey Weinstein guilty on two criminal counts, criminal sexual assault in the first degree and rape in the third degree, while acquitting him on three other charges.
March Tara Reade, who initially accused former Vice President Joe Biden of sexual harassment, now claims he sexually assaulted her in 1993 while she was employed in his Senate office.
May Biden denies Reade’s accusations but says every claim should be heard.
July Women in the Army share their stories of sexual harassment on Twitter under the hashtag #IAmVanessaGuillen after the dismembered body of Spc. Vanessa Guillén, a soldier based in Fort Hood, Texas, was found two months after she complained about being sexually harassed. A fellow soldier kills himself just as police are about to arrest him for the murder. Protesters around the country push Congress to enact a bill to allow servicemembers to report sexual harassment to an independent agency.
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