Protecting the Legal Rights of Sexual Harassment Victims
Sexual harassment has long pervaded California workplaces. Finally, however, activists are demanding action as never before, and the industries of California are responding. The technology sector, the entertainment industry, and even the state legislature have made dramatic changes in the wake of recent sexual harassment allegations. Now, more than ever, victims must speak up and hold harassers accountable for their illegal conduct.
The experienced attorneys at Winer, Burritt and Scott, LLP, serve people who were sexual harassed in Modesto and Stockton, Fresno, as well as the entire Central Valley. Call (800) 652-6137 today to schedule your free consultation.
The History of Sexual Harassment Law in the United States
Modern sexual harassment law in the United States began with the passage of the Civil Rights Act of 1964. Title VII of the Act prohibits employers from refusing to hire or firing an employee based on sex. The Act also prohibits discrimination in compensation, as well as the terms, conditions, or privileges of employment based upon an employee’s sex. In 1980, the Equal Opportunity Employment Commission determined that sexual harassment constituted prohibited sex discrimination under Title VII.
The U.S. Supreme Court followed this with a 1986 decision, Meritor Savings Bank v. Vinson, which held that Title VII prohibited sexual harassment. This case was also momentous for another reason—lower courts and the Equal Opportunity Employment had previously held that hostile work environment claims did not violate the Act. The Supreme Court disagreed, affirming that Title VII did prohibit hostile work environment claims. From this point on, creating a sexual hostile work environment or demanding sexual favors for preferential treatment in the workplace could result in legal action.
Subsequent case law further examined allegations of sexual harassment, and shed light on conduct that would or would not meet the rigorous test for creating a hostile work environment. (Namely, that the conduct was so pervasive or severe as to actually change the terms and conditions of the victim’s employment.)
In California, the Fair Employment and Housing Act of 1959 originally offered protection based on race, but not gender. Sex and sexual orientation were later added to the list of protected classes. Since then, California has continued to pass sexual harassment laws that further protect victims in the workplace (up to and including the 2017 legislative session, which saw the introduction of a bill to add venture capital funding to the list of protected work relationships in which sexual harassment is prohibited).
Today, the California Department of Fair Employment and Housing is the largest state civil rights agency in the United States.
The cultural history of sexual harassment is as important as its legal history. For many years, sexual harassment was seen strictly as a women’s issue. Feminist organizations were often the only ones working to raise public awareness of workplace sexual misconduct. Many times, reports of large settlements or jury awards would lead cynics to deride victims as simply greedy. This was not a healthy society in which to raise issues of gender equality and sexual propriety in the workplace.
And then, finally, the dam broke. Massive scandals erupted in powerful institutions that men almost entirely controlled. The Penn State scandal involved vulnerable boys and the powerful men who preyed on them (then facilitated a decades-long cover-up). The entertainment industry was rocked by accounts of sexual crimes against both men and women. The technology sector—which always had a problem promoting itself as friendly to women and minorities—also saw its share of sexual harassment allegations. The sheer scale of these massive scandals and their cover-ups proved that sexual misconduct was no longer just a women’s issue.
How Workplace and Societal Cultures Can Prevent Victims From Coming Forward
When the dam of silence broke, and sexual harassment tales finally went public, the incomprehensible scope of the problem raised many important questions. How could such behavior have continued for so long? Why were those in powerful positions covering up the conduct (and in many cases, crimes), rather than trying to protect victims? How had the systematic cover-ups become so difficult for victims to fight against?
The answers to these questions begin to shed light on why the victims largely remained silent. They also provide a critical understanding as to how to identify, correct, punish, and prevent future sexual misconduct.
One common theme in many of the recent sexual misconduct scandals is the pervasive and systematic cover-ups by powerful organizations.
The Penn State scandal involved decades of silencing by the football team’s staff, the university, and Jerry Sandusky’s Second Mile charity. The latter organization was supposed to protect vulnerable young men. Instead, it was used as a vehicle to deliver potential victims into Sandusky’s waiting arms. As investigations continued, evidence emerged that powerful men and women had bribed, threatened, and coerced Sandusky’s victims into silence to protect the reputation of the football program.
The investigation of sexual abuse claims against USA Gymnastics team doctor Larry Nassar found similar actions. He, too, has pleaded guilty to sexually abusing hundreds of young athletes over many decades. Here, too, investigators found evidence that powerful organizations (the Michigan State University gymnastics program and USA Gymnastics, which trains and certifies all American gymnasts for Olympic competition) knew about the abuse and failed to report it. Again, some victims were actively discouraged from reporting Nassar’s crimes.
Winer, Burritt and Scott senior partner John Winer was interviewed and quoted by a number of national media outlets about the Larry Nassar story. Mr. Winer explained that young, female Olympic-caliber athletes are particularly vulnerable to sexual abuse and harassment. They virtually can’t complain about sexual harassment without fearing that their lifelong goal of competing in the Olympics will be destroyed. All it takes is a coach or someone in power to decide that they won’t make the Olympic team and then they will not make the team. It is rare that so few people have so much complete and total power over children whom they should protect. Parents don’t have this much power. Teachers don’t have this much power. This is why dozens of young girls failed to report the abuse. This should have been recognized by USA Gymnastics and Michigan State and extra protections should have been put into place.
Nor are powerful organizations limited to the sports world. Film producer Harvey Weinstein, too, was accused of sexually assaulting a shocking number of women for many decades. He alleged engaged in a pattern of covering up sexual abuse that relied heavily on his influence in Hollywood. His used his connections and his powerful Weinstein Company to pressure victims into silence. Weinstein Company employees are even reported to have knowingly arranged for the pretextual business meetings that allowed Weinstein to harass and assault his victims. Thus Weinstein, like Sandusky and Nassar, relied on a network of power and influence to systematically oppress his victims into silence.
For many victims, the stigma associated with a sexual harassment claim is a strong deterrent to reporting illegal workplace conduct. Some fear that they will lose future work opportunities if potential employers know that they reported sexual harassment by another employer. It is illegal for employers base hiring decisions on whether a job applicant has reported sexual harassment in the past. The problem, of course, is that it is extremely difficult to prove that a candidate didn’t get a job as a direct result of prior sexual harassment reports.
Some victims change careers entirely. Fortune magazine reports on Gretchen Carlson’s latest career plans. Carlson was a former Fox News anchor who settled sexual harassment claims against Fox News and its late chief Roger Ailes for $20 million. Now, Carlson plans to commit herself to advocating against sexual harassment. In particular, she is fighting against binding arbitration clauses in employment contracts that require victims to submit their claims to a confidential arbitration process rather than making them public in open court.
Victims whose circumstances do not align with “traditional” sexual harassment cases may also find speaking up difficult. For years, the stereotype of a male superior making lewd comments or advances at an attractive female secretary has persisted. Sexual harassment no longer falls under such traditional roles. Society, and the law, now recognizes that members of the LGBTQ community and men can suffer from sexual harassment.
The gender or perceived attractiveness of the harasser may also complicate the victim’s feeling about reporting the conduct. Sexual harassment may invoke issues of race or cultural heritage that also complicate (or sometimes, even dilute) the victim’s feeling about the sexual harassment. In all of these cases, victims may feel added—and understandable—confusion about the harassment to which they were subjected.
But these victims still need to speak up. Sexual harassment that does not fall into “traditional” roles or stereotypes remains illegal. Racial bias or concurrent crimes (such as sexual assault) do not make sexual harassment legal.
Let an Attorney Help You Overcome Barriers to Reporting Sexual Harassment
Victims encounter few—if any—cases in which reporting sexual harassment is easy. Many emotional, societal, and career-related considerations make it difficult to speak about workplace sexual misconduct.
While these problems are certainly real barriers, it is important for victims to overcome them. Only holding harassers accountable for their illegal actions can stop the cycle of sexual harassment. Employers, too, must face accountability for allowing sexual misconduct to continue in the workplace. Every California employee has the right to a safe working environment free of sexual hostility. California employers have a legal obligation to provide this safe working environment.
An attorney can help a victim overcome the barriers to reporting workplace sexual harassment. First, an attorney’s knowledge of the claims process and court system can help a victim prepare for what may happen next. The court process can overwhelm anyone who is not familiar with it—especially in cases involving sensitive matters such as sexual misconduct. To prove a claim, a victim must often retell the details of the sexual harassment in public forums. An attorney can help the victim prepare for these steps in the litigation process and make it less overwhelming.
Second, an attorney can help a victim balance the competing—but real—interests in sustaining a legal claim and in publicly reporting sexual misconduct. It is important for victims to speak up. Advocacy efforts through organizations such as #MeToo have helped many victims come forward and find strength in numbers. Unfortunately, making public statements during ongoing litigation can hurt a victim’s legal case. This does not mean a plaintiff cannot speak up about the harassment. It simply means that the victim must carefully plan any public statements and the content of those statements. An experienced sexual harassment attorney can help victims balance their interests in speaking publicly and protecting their legal claims.
Ultimately, victims need to report the abuse they have suffered. This can empower other victims to come forward. Recent movements against sexual harassment have shown the impressive strength in numbers that sexual harassment victims have when they band together. Strength in numbers has enabled many victims to find power in each other, and take power away from their abusers. Legal guidance can help victims face their fears, make reasonable plans to deal with the consequences of reporting sexual harassment, and tell their stories to prevent other innocent victims from suffering from similar sexual misconduct.
Call a Central Valley Sexual Harassment Lawyer Today to Discuss Your Case
By reporting sexual harassment and holding perpetrators accountable, victims can help rid the Central Valley of illegal workplace conduct one case at a time. The progress may seem slow, but the work is critically important. Our attorneys help victims meet many important goals. Speaking up, holding employers accountable, and stopping the cycle of harassment are all crucial steps toward eliminating sexual harassment in the Central Valley’s workplaces. Call (800) 652-6137, or send us an email through our online contact form to schedule your free consultation with an experienced sexual harassment attorney at Winer, Burritt and Scott, LLP. We fight hard to protect victims’ legal right to compensation and make the workplaces of California safer for all workers.