Sexual Harassment at Work: Can Legal Remedies Change Employer Practices?
The Civil Rights Act, which made sex discrimination illegal, was passed in 1964, but it took more than twenty years for the Supreme Court to declare that sexual harassment was a form of sex discrimination. Even then, eliminating sexual harassment from the workplace has been slow and complicated. For the past two years, researchers at the Institute for Women’s Policy Research have been studying the process, and on July 19, 2011, they joined the U.S. Studies program to release their comprehensive new report, Ending Sex and Race Discrimination in the Workplace: Legal Interventions that Push the Envelope.
The report examines over 500 settlements in employment discrimination cases and offers a detailed analysis of sexual harassment litigation. Two of the report’s authors were on hand to present the report, along with panel of prominent lawyers and scholars offering insights and reactions.Click here for a link to the report
Sonya Michel, director of United States Studies at the Wilson Center, opened the discussion by reflecting on the women’s movement and its enduring legacy of anti-discrimination laws. While applauding these legislative victories, she noted, “passing laws is one thing; implementing them is another.” The IWPR report, she said, “provides policy makers and advocates for women’s equality a basis for reforming and improving remedies for discrimination.”
Fatima Goss Graves of the National Women’s Law Center reviewed the Supreme Court’s history of fine-tuning the standards for the legal prevention of sexual harassment. She revisited the 1986 Meritor v. Vinson decision declaring sexual harassment a form of sex discrimination that was actionable under Title VII of the Civil Rights Act and noted several other legal landmarks that clarified behaviors that could or could not be considered harassment.. According to Graves, Meritor “is still good law, which in these times we have to celebrate,” but a number of recent cases suggest that the definition of workplace sexual harassment has not been settled.
This kind of skepticism means that not all perpetrators can be called to account. Cynthia Deitch, associate professor of sociology at George Washington University and one of the report’s authors, identified several fears that commonly deter women from reporting harassment: that perpetrators will not be punished, that complaints will lead to retaliation, or that they will not be taken seriously. In three recent cases, Deitch said, settlements were crafted that “managed to create environments so that these things were lessened.” They did this by setting up independent external monitors and creating effective complaint procedures. They also contained real punishment for harassers and protected against retaliation. All three companies involved in these cases, she pointed out, also had unionized workforces, so grievance procedures were already in place.
Ariane Hegewisch of IWPR, another author of the report, took a broader look at the cases studied, noting that sexual harassment occurs across all industries and types of workers, although it is especially prevalent in the service sector. “Having a policy [against sexual harassment] and a grievance procedure in itself doesn’t seem to do terribly much,” she said, as “most of the companies that end up in court do have policies.” In other words, reporting and enforcement require more.
Hegewisch also addressed the challenges of studying sexual harassment. In examining litigation, she said, it is difficult to measure whether fewer reports of sexual harassment mean less harassment taking place or harassed workers feeling less comfortable speaking out. She and Deitch proposed anonymous surveys to clarify this question but received pushback from employers. Noting that the Equal Employment Opportunity Commission (EEOC) is the main enforcer of sexual harassment law, Hegewisch encouraged other organizations to share the burden. She also expressed surprise at the women’s movement’s lack of interest in the issue.
Joining the discussion via Skype, Mónica Ramírez, a lawyer at the Southern Poverty Law Center in Atlanta, described her experiences representing low-wage immigrant women who have been sexually violated in the workplace. Many of these women are particularly vulnerable because they are unauthorized. Harassers use their status to silence them; they feel assured that victims who are vulnerable to deportation will not seek legal remedies.
The main goal of sexual harassment litigation, according to Ramirez, should be prevention rather than relief--looking beyond individual justice to try and eradicate overall sexual violence. Effective litigation is made difficult, however, by both confidential settlements that only address the victim and by caps that limit damages based on company size, making smaller companies less culpable. Such caps are unjust, Ramírez said, because “the trauma of a woman who has been raped at work is not amplified because she works with 300 people as opposed to someone who’s been raped in a place where they only have 100 employees.”
Carol Rosenblatt of the Coalition of Labor Union Women (CLUW) shared the results of her organization’s research into strategies used by major unions throughout the country to combat sexual harassment. These include educational tools, steward training, conferences and informational campaigns for members. Looking forward, she said that CLUW “will continue to raise the issue, will continue to push and push until the labor movement and the rest of society combats this most ugly form of discrimination.”
EEOC attorney Jennifer Goldstein closed the panel by assessing ongoing legal discussions. Two major points of contention are the “because of sex” wording in Title VII and what Goldstein called the “teenager problem.” In several recent cases, the EEOC has had difficulty showing that inappropriate behavior took place “because of sex,” but the court emphasized that sexual harassment “doesn’t have to be motivated by lust.” With regard to the teenager problem,” Goldstein explained that employees such as teenagers and non-English speakers often do not know how to take advantage of complaint mechanisms. Reversing a district court decision, the Seventh Circuit Court of Appeals recently ruled that employers must adapr their policies to their workforce
By: Avram Billig, Intern, Emily Malkin, and Sonya Michel
Associate Professor of Women's Studies, Sociology, and Public Policy, George Washington University
Study Director at Institute for Women’s Policy Research (IWPR)
Senior Attorney in the Appellate Division of the Equal Employment Opportunity Commission’s Office of General Counsel
Vice President for Education and Employment at the National Women’s Law Center