Few Consequences for Sexual Harassment

sexual-harassmentUPDATE:  Shortly after this story was written, the U.S. Supreme Court made it more difficult to win a sexual harassment lawsuit by raising the bar for who constitutes a “supervisor” in the workplace – a designation that has important consequences with respect to the employer’s liability. See Vance v. Ball State University.

Sexual harassment in the military underscores a much bigger problem in American society.

 Sexual harassment is a major problem in all workplaces but it is extremely difficult – if not impossible – for victims  to hold abusers accountable for their illegal conduct. Surveys show that third of American women say they have experienced sexual harassment on the job.

For years, women in the military complained that the military did little or nothing about complaints of sexual abuse.  Then two military officers whose duties include preventing sexual harassment and assault were arrested for alleged sexual assaults and the military was forced to confront the issue.

 Defense Secretary Chuck Hagel  recently offered a solution that seems oddly misdirected.  Hagel said that  all of the Pentagon’s sexual assault prevention coordinators and military recruiters will be retrained, re-credentialed and rescreened. But there is no evidence that this is a problem of training; the evidence points to a problem of lack of consequences.

Members of the military who commit sexual harassment and assault have not been held to account by the “employer”  and so it continues. And this is also the problem in the wider society. There is a yawning lack of accountability for perpetrators of sexual abuse and the employers who tolerate this behavior.

Victims in non-military workplaces also complain to supervisors and human resource officers who often do little or nothing to hold the perpetrator accountable.

At that point, the victim’s only  recourse is to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) – which is a necessary precursor to filing lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964.  The  EEOC receives about  30,000 sex discrimination complaints a year and, of these,  the agency targets systemic cases involving numerous victims. If the victim’s case doesn’t fit its parameters, the EEOC likely will do nothing but issue a “Right to Sue” letter.  That can take 180 days.  

 Now the victim’s only recourse is to file a lawsuit.  The first hurdle is finding a private attorney willing to take the case.  This can be very difficult for mid- to –low wage earners because there are more than enough high-earner victims with potentially higher damages. The victim also must pay the attorney’s up-front retainer – which in some areas is $25,000 or more.. People like to blame money-grubbing lawyers but legislatures and judges have made these cases very difficult to win and very costly.

 If the case ever gets to court it may be there for only a short time. Federal judges dismiss discrimination cases in the early stages at a much higher rate than other types of cases. If that happens, the victim’s only option is to file a costly appeal.  But if the case is not dismissed, it will take years to wind it way through the system. 

Occasionally one hears of a particularly egregious case of sexual assault that results in a spectacular jury verdict. These are rare.

In short, it is extremely difficult for victims of sexual abuse in the workplace to hold perpetrators accountable for  sexual abuse, not to mention the employers that tolerate abusive work environments. The system screens out all but the most dedicated victims and the most egregious cases. It’s like a lottery that few will win. And that’s a huge part of the problem.

It could get worse
If that’s not bad enough – the situation could get worse.

The  U.S. Supreme Court, the most pro-business Court since WWII,  heard arguments last year on a case that involves who qualifies as a “supervisor” under a federal employment discrimination law. This  question is important because it goes to the issue of damages and whether the employer – rather than the individual abuser –  is liable for the conduct of the abuser.

 The 7th U.S. Circuit Court of Appeals has ruled that only a person with the ability to fire or hire employees can be considered a supervisor,  not managers who supervise workers but cannot fire them. Other federal appeals courts and the EEOC  define a supervisor as a person with authority to direct daily work activities and can undertake or recommend “tangible employment decision affecting employees.”

 The case was brought by Maetta Vance, an African-American catering specialist at Ball State University, who accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. She  claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that Davis was not her supervisor because she could not fire Vance. The judge also ruled the university was not liable because it  took corrective action. The 7th Circuit of Appeals upheld that decision, and Vance appealed to the Supreme Court.

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