#MeToo – Sexual Harassment At Work – How the Law Protects You

The #MeToo movement has taken the media by the storm in late 2017 and has brought many sexual abusers to accountability. But its achievements can only last if every victim of sexual abuse knows their legal rights and is not afraid to assert them.

The #MeToo Movement – How One Article Shook the World

There were many stories that rocked the world and shocked the public in 2017. America suffered from devastating storms and its close neighbor – from a catastrophic earthquake. News of shootings on American soil coincided with reports of terrorist attacks from around the globe. In addition to that, for a large part of the previous year, the public in virtually every corner of the world followed, with growing concern, the ever-escalating exchange of remarks and threats between the leaders of two nuclear powers.

Apart from real earthquakes and geopolitical tremors, there were socio-cultural upheavals as well. One of the most significant started with an article in The New York Times magazine published on October 5th. It described what appears to be a systematic practice of sexual harassment that young women in the entertainment industry were subjected to by Harvey Weinstein – a well-known independent movie producer and mogul. In the days and weeks following the publication of the article, many women from the entertainment industry, including many well-known actresses, stepped out and shared their stories of sexual harassment – personal, deeply moving and immensely disturbing. What started with just one article quickly evolved into a momentous movement. Other women, including celebrities and professionals from all industries and walks of life, quickly united and employed the power of social media under the banner of a spontaneous #MeToo hashtag campaign. For the best part of the following two months, the allegations of sexual misconduct against well-known, powerful, public individuals raged in the press and the social media alike. According to one source, more than 40 sexual scandals broke out from late October to mid-December of 2017. Careers were broken, resignations were filed and most importantly – a seemingly ubiquitous and yet rarely addressed problem was finally brought to a broader light. The #MeToo movement sent a powerful message to sexual bullies and predators – your actions are unacceptable and you will be held accountable for them.

Even though sexual harassment litigation is not our primary area of practice at Marasco & Nesselbush, LLP, we recognize the importance of this issue and a public discussion on sexual misconduct in the workplace. That’s why we decided to dedicate this week’s blog post to raising awareness of the problem. We will review the data on how widespread sexual harassment in the workplace is, what laws protect those who have fallen prey to it, and what options the victims have to defend their rights through legal process and litigation.

How the Law Defines Sexual Harassment

According to The Economist magazine, the term “sexual harassment” is relatively new – it entered the public discourse only as recently as the 1970s. It was legally defined for the first time in the United States in 1980 by the Equal Employment Opportunity Commission (EEOC). The EEOC characterized sexual harassment as unwelcome sexual advances or sexualized conduct that affected an individual’s work. The commission also stated that victims of such conduct had grounds for legal complaints. This legal recognition of sexual harassment was further reinforced by a ruling of the Supreme Court in 1986 which stated that companies could be held liable for the sexual misconduct of their employees even if a company itself was not aware of it.

Admittedly, the term “sexual harassment” itself is broad and somewhat ambiguous. Efforts have been made to pinpoint what kind of conduct exactly constitutes sexual misconduct. The Economist mentions a distinction made by Luis Fitzgerald, Ph.D., of the University of Illinois, which divides this broad term into three more precisely described categories. According to Fitzgerald, sexual harassment may include gender harassment (misogynistic remarks, degrading language, gender policing), unwanted sexual attention (making unwanted and/or unreciprocated sexual advances), and sexual coercion (which combines unwanted sexual attention with applying job-related pressures in order to coerce the victim).

According to Rhode Island General Laws section on labor and labor relations, sexual harassment is defined as “any unwelcome sexual advances or requests for sexual favors or any other verbal or physical conduct of a sexual nature”. The section further specifies that the conduct so- described is treated as sexual advancement when submission to such advances is an implicit or explicit condition of employment, when submission or rejection becomes a basis for employment decisions affecting an individual, or when such conduct interferes with the work performance of an individual and/or creates “an intimidating, hostile, or offensive working environment”.

How Widespread Sexual Harassment Actually Is

Because sexual harassment often – if not in most cases – occurs when there is a considerable imbalance of power between the perpetrator and the victim, many instances thereof remain unreported. Thus, it is difficult to precisely estimate the scale of the problem. Additionally, even in the modern day United States, persisting cultural norms in some areas may encourage and perpetuate unfavorable reactions towards sexual harassment victims and thus discourage affected women from standing up to their abusers. The EEOC reports that, in 2015 alone, they received nearly 30,000 complaints related to harassment allegations. In spite of that, the commission believes that as much as 75% of all sexual harassment incidents go unreported.

Still, public polls and surveys may offer an idea of how widespread and deep-seated the problem actually is. For example, a recent Gallup poll revealed that 42% of all American women have experienced sexual harassment in their lifetime. In a similar survey conducted by YouGov and cited by The Economist, 60% of American women polled responded yes to the question Have you ever been sexually harassed by a man?  Extrapolating from both surveys, it can be argued every second woman in the United States has fallen victim to sexual harassment at some point in their lives. The scale of the problem is, truly horrifying.

 

How to Respond to Sexual Harassment in the Workplace

In order to be able to adequately respond to sexual harassment in the workplace, it is important to understand exactly what actions can be viewed as sexual harassment. According to literature prepared by the UN Women Watch website, sexual harassment may include verbal, non-verbal and physical behaviors, such as:

  • Unwanted pressure for dates;
  • Unwanted sexual teasing, jokes, remarks, or questions;
  • Referring to an adult as a girl, hunk, doll, babe, or honey;
  • Whistling at someone or cat calls;
  • Sexual comments;
  • Neck massage or otherwise touching an employee’s clothing, hair, or body.

While no single instance of such acts may be enough to warrant a legal action against the perpetrator, none of them should be tolerated. The following list presents steps that may need to be taken if a person falls victim to sexual harassment at work:

  • Document the incident – memory can be failing; therefore, it is recommended to make a note of the occurrence or occurrences, including date, time, names, and details of the unwanted conduct;
  • Gather the evidence – this includes any emails, text messages, or even screenshots of SnapChat messages or stories; make copies, print out physical versions, and store them in a safe place;
  • Report harassment- review your company’s policies on harassment and report the incident to your superior, the HRs, or to another responsible body or person within the company. This is especially important because, according to the Supreme Court, reporting sexual harassment is a requirement before litigation can be initiated;
  • File a complaint with the EEOC – this step may be necessary if you already reported sexual misconduct to your employer but they don’t take any action;
  • Consult a lawyer – an attorney experienced in conducting sexual harassment cases will advise about your legal options and whether pursuing a lawsuit is a desirable course of action in your case

It is also important to note that, according to the current understanding of the law based on various decisions of the Supreme Court, whether or not a person may have legal grounds for pursuing legal action against another in relation to perceived sexual harassment or misconduct depends on a variety of factors. Those factors include, among others, whether such conduct was indeed unwelcome, whether a reasonable person may be offended by it or whether such conduct is severe or pervasive enough to create a work environment that a reasonable person would find hostile or abusive. That’s why before embarking on any course of legal action, it is vital to seek advice from an experienced legal professional.

The #MeToo movement has engendered real accountability for sexually offensive behavior and abuse and brought down many powerful men who had perpetrated such behavior for years or even decades, with apparent impunity. It has also raised public awareness of the pervasive problem and inspired and empowered many women to stand up to their abusers. Of course, the war against sexual harassment and misconduct at the workplace is far from over. A deep and lasting change in the American work culture is needed. Time will tell if the #MeToo movement will indeed become a harbinger of such change or whether it will go down in history just as another turbulent incident in the overall disastrous year AD 2017. If you’ve been a victim of sexual harassment in the workplace, the attorneys at Marasco and Nesselbush are ready to help you pursue the justice you deserve. Contact us for a free consultation.

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