With the rise of #MeToo has come a resurgence of questions surrounding workplace harassment, which is all too common in the US, where at least 27 percent of women have reported experiencing sexual harassment at work.
The EEOC released a study finding that “anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.” Perhaps more unsettling is the fact that those who muster the courage to speak up are punished for doing so. According to a Vox report, nearly three-quarters of all workplace harassment victims who speak up suffer retaliation.
According to Emily Martin, of National Women’s Law Center, women victimized by harassment tend to work in male-dominated industries, such as construction; in low-wage jobs, such as with hotel cleaners; and in tip-oriented positions, such as in the service industry.
But no matter where a woman works, the possibility of harassment always looms. With this grim fact in mind, we might begin to wonder what legal solutions could be put in place to quell the problem once and for all. Below, we will touch on a few possibilities.
First, it might be advisable for Congressional leaders (perhaps Democrats after the 2018 elections) to revisit the new tax law, which contains provisions barring employers and employees from deducting fees and expenses related to sexual harassment settlements. The proper move might be to reinstate tax deductions for employees, who suffer from harassment, while leaving intact the prohibition for employers.
We might also want to expand our notion of liability in sexual harassment cases. Currently, we only hold employers liable, leaving the actual harasser free of any financial responsibility. As an alternative, we could place partial responsibility on the harasser, enforcing high fines for all workplace transgressions. If people know that they could face a several thousand dollar fine, they might be less willing to harass their colleagues. What’s more, such a person could be forced to leave his job (in addition to having to pay a fine).
It should also be possible for victims of sexual harassment to receive substantial payment for damages. Federal law currently caps damages – both punitive and back pay – at $300,000. This was the questionable result of Congressional compromise in the early 90s when the Civil Rights Act of 1991 was written. This is insufficient, as victims deserve far more. Thus, the cap should be lifted.
All settlements should be transparent, so that the world can know who perpetrated the harassment and how much they spent to settle the matter. At the same time, settlements should not disclose the name of the victim, as victims deserve to remain out of the spotlight. With more transparency comes more accountability.
As became apparent in the case of Harvey Weinstein, women may face severe consequences for speaking up about harassment. This has led to a culture of silence around assault. It is thus important to address this problem head-on. According to Martin, unions are a potential solution, as women working under union contracts tend to get equal pay. These environments can be less hostile toward female workers, and thus there may be fewer obstacles to reporting harassment.
According to the EEOC study, only 30 percent of women who experienced sexually coercive behavior reported it and only 8 percent of women who experienced inappropriate touching reported the event. “That means that, on average, anywhere from 87% to 94% of individuals did not file a formal complaint,” the study continued.
To address this, there’s one simple thing we could do: define harassment more clearly. According to the EEOC report, survey-takers were more likely to report sexual harassment when it was clearly defined. When the terms went undefined, a quarter of respondents said they had experienced sexual harassment. But once the terms were specified, 60 percent of the women responded saying they had been harassed.
The above are only minor changes that could produce positive effects. In the end, sexual harassment is rooted in patriarchal norms, and it is these norms that need to be addressed.
If you or a coworker are in need of legal advice, talk to an experienced employment attorney today.