Today’s sexual harassment debate: Deja vu all over again

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Allegations against Harvey Weinstein set off tremors in Hollywood and other industries. Top: Weinstein, former Amazon Studios executive Roy Price, director James Toback, New Orleans chef John Besh; middle, from left: fashion photographer Terry Richardson, New Republic contributing editor Leon Wiseltier, former NBC News political commentator Mark Halperin, former Defy Media executive Andy Signore; bottom, from left: filmmaker Brett Ratner and actors Kevin Spacey, Jeremy Piven and Dustin Hoffman.

Don’t get me wrong. The current renewed media attention to the sexual harassment epidemic is good and important and necessary.

But as a plaintiff’s employment lawyer for the past 30 years who listened to an National Public Radio panel discussion last weekend, it struck me that the interviewers were asking the same questions and the panelists making the same remarks as way back then.

“What causes sexual harassment?” they asked. “Why don’t more women come forward to report it?” “Why don’t employers take more responsibility to stop it?”


It is astounding that some 26 years after the Clarence Thomas Supreme Court confirmation hearings and some 19 years after the Court’s landmark ruling in Faragher v City of Boca Raton, we are all having the same discussion over and over again.

Why haven’t decades of media attention and corporate sensitivity training impacted the incidence of sexual harassment in American workplaces? One reason is the erroneous view of much of the public (and most sexual harassers) that sexual harassment cases are “he said, she said” matters that are incapable of proof in a courtroom. But as a wise trial lawyer with whom I worked early in my career said, “Proof is no more than what a jury decides to believe.”

Call me gullible, but having interviewed dozens and dozens of sexual harassment victims over the years, I have never once doubted the story that they presented. Typically the details are so idiosyncratic and unique that the client would need to have the imagination of Stephen King to have invented the tales that they tell.

The other reason it continues unabated is that sexual harassment is often more about power than any other issue. It is just another method — along with discriminatory pay and promotion practices — to keep female employees in a second-class status.

But will this current round of hand-wringing make a difference or is it just another media topic until the next unsettling story about harassment comes along to dominate the news cycles for a few weeks?

Nothing will change until employers choose to get out from under the 1996 Supreme Court decision in Faragher. In a ruling that drastically changed the landscape of sexual harassment law, the Court held that employers can escape liability for sexual harassment claims if they prove that they had in place a reporting mechanism for harassment claims and they then investigated the complaint.

Sounds good on paper, but the practical upshot of the ruling was that it created a dangerous landscape for the harassment victim to navigate.

Since Faragher, when an employee reports sexual harassment, it is in the best interest of the employer to act as though it has undertaken a comprehensive investigation, which it will then use to avoid corporate liability. Thus, it is in the best interest of the corporation to generate lots of paper documenting the employees whom it questioned about the victim’s generally unwitnessed complaints.

The investigation reveals to the harasser (who is generally in a position to retaliate against the employee) and to scores of co-employees that someone has complained. It encourages breaching of confidentiality about the complaint and renders the accuser a pariah among co-workers. At that point, the human resources department can safely conclude that it has done its duty under the law and close the book on the complaint.

Meanwhile, where does this leave the victim? I estimate that at least 25 percent of sexual harassment victims whom I have consulted over the years say they wish they had never raised a complaint. They report hostility not just from the accused harasser but from other managerial personnel and from co-workers who now steer clear of the victim lest she report some conduct of theirs to human resources personal as well.

Indeed, Faragher left both employees and employers in an odd and uncomfortable place.

If we genuinely want to reduce the incidence of sexual harassment in workplaces, at least two changes need to happen. First, corporations need to exercise their genuine judgment (just like plaintiff’s employment lawyers, judges, and jurors do) about uncorroborated sexual harassment complaints and send a clear message to all employees that the tolerance level is zero.

Second, the federal courts in some regions of the country (like the Seventh Circuit including Illinois) need to hold that individual harassers may be sued under Title VII — not just the corporate employer. When those harassers see their own careers, houses and assets on the line in litigation, that may be a more powerful deterrent than all of the talk shows and corporate sensitivity training combined.

Richard J. Gonzalez is clinical professor of law and director of clinical legal education at Chicago-Kent College of Law.

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