The System is Rigged against Sexual Harassment Victims Inside and Outside of Congress

Many folks have expressed outrage that the system set up by the U.S. Congress to handle sexual harassment complains lodged against members of Congress is obviously rigged to protect the harassers.

But Congress’ system, while different, arguably is no worse than the system in place for everyone else. Sexual harassment victims are routinely denied justice by our nation’s court system.

According to a 2017  analysis  by legal research service Lex  Machina, very few employees who file federal job discrimination, harassment, and retaliation claims make it to court. From January 2009 through July 2017, Lex Machina found that of 54,810 cases that were filed in federal courts and closed, employees bringing the suits won just 584 times in trial, or about 1% of the total. Employers won 7,518 cases, about 14%. Another 3,883 cases, or 7%, were settled on procedural grounds, mostly dismissing the employee’s claims. What happened to the rest of the cases? No one knows for sure why 78% of cases were dismissed by either the employee or both the employee and employer;  Lex Machina assumes that most of those 42,742 cases were settled.

Consider:

CONGRESS: Victims of sexual harassment by members of Congress have 180 days to bring a claim to the U.S. Congress Office of Compliance, the office responsible for handling workplace complaints.

EVERYONE ELSE:   Sexual harassment is a form of discrimination under  Title VII of the Civil Rights Act of 1964 Victims of sexual harassment cannot file a lawsuit until they go through the  U.S. Equal Employment Opportunity Commission’s complaint process, which can take years. Victims typically must file a complaint with the EEOC  within 180 days of the complained of harassment. Federal employees have a much shorter time limit and must file discrimination charges within 45 days from the date of the alleged violation.

CONGRESS: Victims of sexual harassment by a member of Congress are subject to up to 30 days of mandatory counseling, where they are informed of  their rights. They then have 15 days to decide whether to submit their claim to mediation. If they reject mediation or no settlement is reached, there is a 30-day cooling off period before they can file a lawsuit or request an administrative hearing. Victims of sexual harassment by members of Congress could potentially file a lawsuit in a couple of months.

EVERYONE ELSE;  Within 10 days of  the filing of a complaint of sexual harassment, the EEOC sends a notice of the charge to the employer. In some cases, the EEOC asks both the complainant and the employer to take part in mediation.  If one party refuses or mediation fails, the EEOC asks the employer to provide a written answer to the sexual harassment charge. The victim then has 20 days to respond to the answer.

The EEOC orders an investigation, which the EEOC says takes an average average of ten months to complete. At the conclusion of the investigation, the EEOC determines whether there is reasonable cause to believe that sexual harassment occurred.

Typically, the EEOC finds no reasonable cause and the complainant is sent a Notice of Right to Sue the harasser.

In the rare circumstance the EEOC finds there is reasonable cause to believe that sexual harassment occurred, the EEOC tries to reach a voluntary settlement with the employer.  If a settlement cannot be reached, the case is referred to EEOC legal staff, who decide whether the EEOC should file a lawsuit. The EEOC rarely files a lawsuit unless there is evidence of systemic sexual harassment involving multiple victims.

If the EEOC decides not to file a lawsuit, the EEOC sends the complainant a Notice of Right to Sue.

The vast majority of sexual harassment victims either can’t afford to file a federal lawsuit or their case is dismissed pre-trial after the employer files a motion for summary judgment.

Some fortunate complainants have the resources to pay a private attorney a retainer of many thousands of dollars and proceed to federal court.  But most of their cases are quickly dismissed.

 

A 2006 study by the Federal Judicial Center found that federal judges granted requests by the employer for dismissal of civil rights cases on a motion for summary judgment 73 percent of the time. Moreover, the win rate for victims of employment discrimination was 15% compared to 51% for plaintiffs in the non-employment context.

If a case survives an employer’s motion for summary judgment, it will likely languish in the court system for years.

The truth of the matter is there is no justice for the vast majority of victims of sexual harassment because the system is rigged to protect employers and not workers. That’s true both inside and outside of Congress. And federal judges from privileged backgrounds and posh colleges  have mostly worked for corporations. They can’t empathize with workers and feel these cases are trivial disputes that waste of their precious time.

I recommended in my book, Betrayed: The Legalization of Age Discrimination in the Workplace, that Congress establish a special court to consider employment discrimination complaints, staffed with specialized judges who really care about and understand the issues.

Ratchet Up the Consequences for Employers that Ignore Sexual Harassment

A perusal of recent headlines shows that companies will place their heads firmly in the sand to keep harassers on the payroll if the company is focused on short term profits.

Despite potential ruinous risk to reputation, costly turnover, lost work time and higher health care costs (among other things) the fact of the matter is that many employers  tolerate sexual harassment when the harasser is valuable to the organization. In some ways, the on-going wave of public sexual harassment incidents is similar to the problem with unsafe cars manufactured in the United States in the 1960s. It was cheaper for car makers to settle lawsuits out of court than to manufacturer safer cars.

In February, 21st Century Fox renewed Bill O’Reilly’s contract  knowing that he was in the process of settling a sexual harassment complaint by a news analyst, who eventually received a $32 million settlement.  O’Reilly, then  the most-watched figure on cable TV, had earlier settled several other sexual harassment claims out of court.

Producer Harvey Weinstein had several Oscars to his credit but he was a notorious bully for years, not to mention sexual predator (or worse). He also was known to engage in physical violence at the office on occasion.

TMZ says  Weinstein’s 2015 employment contract states that if the Weinstein Company had to pay settlements for his sexual or other misconduct, he must reimburse the company and pay an escalating set of fines: $1 million for the fourth and any subsequent instance.

Congress must insure employers that ignore evidence of sexual harassment face consequences that make it more expensive for them to do nothing than to act.

The complacency of Fox and the Weinstein Company demonstrates how little employers today fear the American legal system, which they count on to  work on their benefit. Typically, employers retain  human resource officers and legal staff who are trained to protect the company from sexual harassment complaints. Courts permit employers to make the legal process as long and difficult as possible for the victims, who often have few resources because they were driven out of their jobs by the employer and the harasser.

A recent development has made it even easier for employers. When the EEOC finds there is reasonable cause to believe the employer is guilty of sexual harassment, it offers a free and confidential mediation program whereby the employer can settle the matter – usually for peanuts – without even having to go to court. And it’s all secret!

Both Fox and The Weinstein Company knew or should have known of their employee’s abusive behavior but apparently they concluded the benefit of retaining the abuser outweighed the cost of paying the occasional out-of-court settlement.  What is needed is serious consequence for employers who ignore evidence of sexual harassment. And by that I mean serious.  A company that is making a profit of X billion should be ordered by a court to pay a percentage of its profit in damages. In that way, society will insure that employers take sexual harassment seriously.

More than Half of Women in Workplace Bullied

More than half of women are bullied at work– often by members of their own sex, according to the largest survey of its kind ever conducted in the United Kingdom.

The gender equality group, Opportunity Now, and PwC, an international  professional services group, commissioned a survey that included interviews with nearly 23,000 women and more than 2,000 men.

The group recently issued a report,  “Project 28-40,”  which urges employers to recognize that “harassment and bullying still occur, despite well-meaning policies. Call it out, deal with perpetuators, and make it simple and straightforward to report.”

Helena Morrissey, chairperson of Opportunity Now, said the key  to improve the workplace for women should be training  excellent managers; this will  achieve “much more than yet another initiative  or programme.”

Fifty-two percent of the women who responded to the survey said they experienced bullying at work within the past three years. The rates were highest for Black British / African /Caribbean women (69%), women with disabilities (71%), bisexual (61%) and lesbian and gay women (55%).

Without being specific, the report states that  the biggest enemy facing women in the office or other workplaces may be other women.  The researchers conducted ten focus groups to gain insight from the survey findings.  “Women often experience bullying by female colleagues and line managers, a point echoed by focus groups participants who thought female bullies felt threatened by potential and ability and so exploited their position or authority to undermine,” said the report.

More than one in four of the women surveyed said they had experienced overbearing supervision or misuse of authority, or were deliberately overloaded with work and subject to constant criticism. One in six of the women experienced exclusion and victimization or were intentionally blocked from promotion or training opportunities.

The researchers conclude that the data shows the extent to which workplaces are “dysfunctional, inefficient and fundamentally unjust” to women.

An additional 12% of women reported experiencing sexual  harassment within the past three years. One in eight said they had been sexually harassed – defined as “unwelcome comments of a sexual nature.”  This includes unwanted physical contact or leering, asking for sexual favors, displaying offensive material such as posters, or sending offensive emails or texts of a sexual nature.

Tap on Wrist for ‘Egregious’ Sexual Harassment

Ct Slashes Jury’s Punitive Award

A decision by the U.S. Court of Appeals for the Ninth Circuit  this week raises questions about  the way courts calculate damage awards in discrimination cases.

A three-judge panel of the San Francisco-based court reduced what started out as a $868,750 jury award for punitive damages in a sexual harassment case to $125,000.

The defendant is the American Smelting and Refining Company (ASARCO),  a Sahuarita, Arizona company owned by Grupo Mexico Corp. that is the third largest copper producer in the US, with estimated earnings in excess of $800 million.

The appeals court agreed that ASARCO employee Angela Aguilar was the victim of “particularly egregious” sexual harassment while working for ASARCO from December 19, 2005 to November 8, 2006.  However, the court said it was required to lower the award because the ratio of punitive damages was excessive compared to the $1 the jury awarded Aguilar for compensatory damages .

Punitive damages are supposed to deter the defendant from engaging in future similar conduct. In other words, the punitive damages should be significant enough to get an employer’s attention so that it will change the illegal practices that led to the damages in the first place.   Will a $125,000 punitive damage award compel a billion dollar corporation to eliminate serious  sexual harassment at the Arizona plant? Not likely.

Statutory cap

The jury’s original punitive damage award was actually hit with a double whammy.

The lower court immediately reduced the $868,750 punitive damage assessment to $300,000 pursuant to a statutory cap placed on such awards by the U.S. Congress.  However, the  lower court refused to further reduce the punitive damage award because of the egregious nature of the harassment suffered by Aguilar.  ASARCO had argued the award should be reduced to $2,500.

The appeals court agreed that ASARCO’s conduct supported  a “very large punitive award” but said the U.S. Supreme Court ruled in 1996 that punitive damages must bear a “reasonable relationship”  to compensatory damages under the due process clause of the U.S. Constitution.  If left to stand, the appeals court said, the ratio of $300,000 in punitive damages to $1 in compensatory damages would be among the highest (if not the highest) ratio since 1996.

“The Supreme Court has repeatedly emphasized the importance of the ratio inquiry and we cannot set it aside … [W]e conclude that the highest punitive award supportable under due process is $125,000, in accord with the highest ratio we could locate among discrimination cases.”

One member of the three-judge appellate panel, Judge Andrew D. Hurwitz, issued a partial concurrence/dissent, arguing the court should affirm the earlier $300,000 judgment because it fell within the statutory cap on damages in Title VII cases.

The Harassment

Here’s a very abbreviated account of what Aguilar experienced while working  at ASARCO:

  • Her supervisor, a very large man, asked her out every day and refused to train her or help her when she rejected him. When she asked for help, he would press up against her. She was afraid he might rape her. ASARCO’s HR Department and said there was nothing it could do.  She transferred to another unit.
  • There was no functioning women’s restroom in the building so the company rented a “porta-potty” for Aguilar’s use.  It was vandalized repeatedly with pornographic graffiti directed at her. She reported it to HR and the mill supervisor in 2006 but photos showed that visible pornographic graffiti remained on the toilet in 2007.
  • Another supervisor told Aguilar “your ass is mine” and often gave her conflicting orders, snapping his fingers at her, telling her to watch herself, yelling at her and threatening her with termination.  Needless to say, management did nothing when Aguilar complained. ASARCO maintained in the litigation that the supervisor’s behavior was not motivated by sex but instead by his general boorishness toward everyone.

Aguilar finally quit.

The case, State of Arizona v. ASARCO, was initially filed by Arizona on behalf of Aguilar and the state. Aguilar subsequently filed her own lawsuit.