“Me too.” Women all over the internet are finding their voices in telling their stories of sexual harassment and outright sexual assaults. Why is it happening suddenly? What took so long?
Sexual harassment is defined by the U.S. Equal Employment Opportunity Commission (EEOC) as a form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, and sexual harassment includes unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature. The conduct has to explicitly or implicitly affect an employee’s employment, unreasonably interfere with an individual’s work performance or create an intimidating, hostile or offensive work environment.
When you read that, do you start to see why employees often don’t report harassment? What’s “unreasonable” interference? Who will believe an employee over his or her boss? And yes, the victim as well as the harasser may be a man or a woman. The victim does not have to be of the opposite sex.
The EEOC says that it is helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. Think about that for a minute. Have you ever had to ask your boss for a raise? Time off? You know how stressful that can be? Now imagine your boss has been sexually inappropriate with you. Given a choice, wouldn’t you consider not saying anything and hope that it ends? Well, that’s what many, many employees do (and apparently even famous actors and actresses). If they don’t think they’ll be believed, what would an employee who desperately needs his/her paycheck feel? You start to understand why people don’t say “me too” until there are others accusing as well.
The question gets asked: At what point does it get bad enough that I risk reporting it? Of course, if someone is making unwanted sexual comments or advances, it is never acceptable. To be legally actionable harassment — meaning when an employee can sue under EEOC guidelines — the behavior must fit into two categories. The first, a hostile environment claim, includes unwelcome behavior that would offend a reasonable person and impact the terms or conditions of employment. The second is “quid pro quo” sexual harassment, which is when a person “asks” for sexual favors in exchange for something else, like a promotion.
What happens after a claim is made? Here’s another reason employees don’t report. People’s lives are hectic; being involved in a sexual harassment investigation is an added burden. A claim must first be filed with the EEOC, which serves as notice of charge to the employer. The employer conducts its own investigation. The EEOC can try to reach a settlement between the parties. If there is no settlement, the EEOC can issue a “right to sue” letter. It can take that letter to a lawyer who will file a suit, or the EEOC can file a suit themselves in district court. The EEOC filing suit rarely happens. A very small percentage of cases are filed directly by the EEOC in federal court.
At the end of the day, while different states have different laws, victims of sexual harassment who prevail in court can recover economic damages, if they were fired or demoted; they can get compensatory damages for physical and emotional distress, punitive damages and attorney’s fees. So, while the process is stressful and arduous, there is a process designed to punish the behavior and make the offended employee whole.
So, when you see “me too,” read it. And put yourself in the author’s shoes. And when you see a rich, powerful person smear a victim as a defense, consider how hard it is to stand up to power, whether it be your boss and that raise or any other authority figure. And perhaps reflect on the courage it takes to actually say “me too,” let alone be the first person to just say “me.”
Janet Johnson is a criminal defense attorney in Jacksonville who practices in state and federal courts. White collar crimes, including fraud, embezzlement and tax evasion, are among her areas of expertise. She is rated AV Preeminent on attorney rating website Martindale-Hubbell and has been named to the American Institute of Criminal Law Attorneys’ Top 10 Best Attorneys list. Johnson is also a legal analyst for CNN and HLN. Contact her at (904) 634-8991 and visit http://janetejohnsonlaw.com/ for more information.
