WARNING: A Tsunami of Sexual Harassment Complaints Are on the Way

by Bradley Arant Boult Cummings LLP

Bradley Arant Boult Cummings LLP

You can take this one to the bank. Complaints of sexual harassment will rise significantly as a result of the sexual abuse allegations against Harvey Weinstein and related media coverage.  My confidence in this bold prediction is inspired by consideration of past history, statistical evidence, and why women will complain of sexual harassment now when they did not do so in the past. Finally, no article on this subject would be complete without a short discussion of the best practices to prevent sexual harassment.

Past History

It has been over 26 years since Anita Hill gave her riveting testimony before the Senate Judiciary Committee in the confirmation process for Clarence Thomas. Although there was certainly a lot of news coverage concerning Justice Thomas' confirmation hearing, it pales in comparison to the media coverage of Harvey Weinstein's downfall. Indeed, 66 percent of people surveyed said they have heard "a lot of news stories about sexual harassment and assault lately," and one in five Americans reports that close friends or family members have shared stories on social media about sexual harassment.

Notwithstanding Ms. Hill's testimony, Justice Thomas was confirmed on July 1, 1991, as the 106th Associate Justice to the United States Supreme Court by a vote of 52-48. Despite the fact that many women's groups saw Thomas' confirmation as a set-back to women's rights in the workplace, there was a 40 percent increase in the number of sexual harassment charges filed with the EEOC the year following Thomas' confirmation hearing. I predict there will be even a higher percentage increase as a result of the Weinstein coverage.

Past Statistics

The 2016 EEOC Survey Data indicates that 25-75 percent (depending on how the survey questions are phrased) of all female workers feel they have been victims of sexual harassment in the workplace. More astonishing is that almost all studies show that roughly three out of every four women (75 percent) who feel they have been sexually harassed never report it. Combining these numbers suggests that there are an estimated 30 million working women who feel they have been victims of sexual harassment but have remained silent -- until now.

Why have the vast majority of women remained silent on sexual harassment, and why will they now speak out?

There are many reasons why women in the past have not reported sexual harassment. One of the main reasons, as suggested by a 2003 EEOC study, appears to be that 75 percent of employees who spoke out against workplace mistreatment faced some form of retaliation. In addition to fearing job loss or hindered career advancement, studies also show that the majority of women do not report claims of sexual harassment because they believe nothing will be done. Still more discouraging is that many women feel if they do complain, they will be accused of causing the harassment ("They asked for it") or fear intense public scrutiny, disbelief, attacks on their own character and being defined as a "troublemaker." In summary, women have not complained because they feel they will be retaliated against, not believed and nothing will be done. So, why will it be different now?

Pre Harvey Weinstein

While Harvey Weinstein is now getting all the press, we need to look back only a year to see how things have changed. Last summer, as a result of the sexual harassment suit filed against him by Fox News anchor Gretchen Carlson, CEO Roger Ailes was forced to resign. Soon thereafter, Bill O'Reilly was forced to resign from Fox News Channel as a result of numerous complaints of sexual harassment. This brings us to Harvey Weinstein and the aftermath.

Harvey Weinstein

It appears to have been an open secret in Hollywood circles that Harvey Weinstein had mistreated many women in the past and had "confidentially" settled numerous suits (at least eight) concerning such allegations. Things drastically changed for Mr. Weinstein late last year after the New York Times published a story detailing numerous accusations of sexual harassment spanning three decades. Shortly after the story broke, he was forced to resign from his position as co-chair of the Weinstein Company. To date, 57 women have accused Weinstein of sexual misconduct.

As stated above, the news surrounding Weinstein's departure and the accusations of sexual harassment leveled against other high-level executives is unmatched. Just last week CNN held a town hall discussion on sexual harassment in America. In other words, CNN considers the issue on par with the topics of prior CNN town hall meetings, such as presidential debates and the attempted repeal and replacement of Obama Care.

Alyssa Milano asked her Twitter followers to share their experiences of sexual harassment and abuse using the hashtag #MeToo. She received millions of responses.

Finally, a recent Washington Post-ABC news poll shows that a solid majority of Americans now believe that sexual harassment in the workplace is a "serious problem." In short, the media coverage on this issue and the public response are unparalleled. 

This new awareness has empowered women to voice their complaints of past harassment and sexual abuse, even against very highly recognized public figures. The President of the National Organization of Women (NOW) has been recently quoted as saying "When one breaks the silence, others are empowered to tell their [stories]." Anita Hill recently commented, "There's obviously strength in numbers." The multiple complaints against actors, business men and politicians that  have surfaced in the last two weeks certainly seems consistent with heightened sensitivity to this issue.

Now that women have seen that their voices will be heard and not discounted or disbelieved and, more importantly, something will be done as a result of their complaints, the emotional barriers to filing complaints of sexual harassment have been severely diminished. Inevitably, more claims of sexual harassment will be brought by the millions of women who have remained silent to date. The helpline at RAINN (Rape, Abuse, & Incest National Network) just last week reported a 21 percent increase in calls. Moreover, recent studies conducted by CNN show that the majority of people surveyed feel that the news coverage surrounding Harvey Weinstein and the aftermath will create a better understanding of sexual harassment and reduce the amount of inappropriate behavior against women.

The Cost of Sexual Harassment and What an Employer Can Do?

Studies show that sexual harassment in the workplace is very costly.  In addition to the hundreds of millions of dollars paid out in settlements every year, sexual harassment causes low employee morale, high-job turnover, increased sick leave, decreased productivity, and reputational loss.  The good news is there are ways to help reduce these costs.

Although written sexual harassment policies are a must in every organization, preventing sexual harassment involves much more from the top down. Prevention of sexual harassment starts with an attitude by top-level executives that they will not tolerate any form of harassment. Unless the leaders of the organization demonstrate commitment to a zero-tolerance policy against sexual harassment, a written policy will have little effect. Once employees know that top-level executives are committed to the company's policies prohibiting harassment, the company needs to train their managers and employees on that policy. The EEOC recommends "An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures." Best practices dictate that such training take place upon hire and at least every year thereafter. Of course, once a complaint is made, investigate it promptly and thoroughly, and take prompt and effective remedial action based on the investigation.  Finally, as mentioned several times above, if an employee does complain, don't retaliate.

If your organization is seriously committed to preventing sexual harassment, if it has a well-written policy prohibiting sexual harassment and it is communicated to all employees, then you are well on your way to preventing the onslaught of claims of sexual harassment which I think are on their way.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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