Helping Victims Tell Their Stories and Access Compensation
The powerful effects of the recent #MeToo movement have forcefully demonstrated just how important it is for victims of sexual harassment to tell their stories. Holding powerful harassers and organizations accountable in court (as well as the court of public opinion) is a critical step towards ridding California workplaces of harassment, abuse, and exploitation of power.
The experienced sexual harassment attorneys at Winer, Burritt & Tillis LLP, have decades of experience in handling sexual harassment cases. They help victims tell their stories, hold employers accountable for providing a safe workplace, and recover compensation to which the law entitles survivors. Call (800) 652-6137 today to schedule your free consultation.
Why Speaking up Is so Important
It is rarely easy for a victim to tell a story of harassment. And yet, this difficult step is necessary and important for many reasons.
- It provides social pressure to change. The recent downfall of many high-profile men in politics, entertainment, and technology was largely triggered by reports of the scores of allegations against them. While legal action is often involved, this is often less powerful than the change of public opinion against the formerly powerful abuser. This power can shield abusers from the consequences of their actions. Making sexual harassment public can take this power away. Often the change is fast and dramatic. The Weinstein Company almost immediately stripped its founder of all connection to his own business. (It still ended up filing for bankruptcy, according to The New York Times.) Uber went through a similar ousting of its CEO after multiple female employees made harassment claims. NPR interviewed Winer, Burritt & Tillis senior partner John Winer on the Uber cases, stating his opinion that Uber needed to clean up their sexual harassment problem or their PR difficulties would get even worse. The co-founder was subjected to a forced resignation that removed him from the company. In both cases, swift action against the harassers resulted from powerful media coverage. Only brave men and women willing to tell their stories make such coverage possible.
- It provides legal pressure to change. In other cases, to secure court orders and protect other victims from similar harassment, lawyers, juries, and judges must hear these painful stories of sexual harassment. Such court orders can address institutional failures in large organizations, which are able to protect sexual harassers by pressuring workers to remain silent. Legal change is also possible through tough new laws. Recently, the California legislature added business owners seeking venture capital to the list of parties protected under state sexual harassment laws. This bill was introduced in response to reports of widespread, rampant sexism in the tech industry (and venture capital transactions in particular). Here, too, is evidence that brave victims telling their stories can lead to tangible social change.
- It provides financial pressure to change. The cost of lawsuits, state and federal fines, and lost good will can result in devastating financial consequences to employers who allow sexual harassment to continue in their workplaces. These financial losses are an important incentive for employers to make real changes in their workplaces. Rather than completing the bare minimum of documentation compliance, employers are beginning to ask the difficult questions about how sexual harassment has continued for so long, and what institutional changes are needed on a large scale to stop it.
- Financial pressure can also come in the form of punitive damages, which are awarded to victims in addition to compensatory damages, which provide compensation for specific, documented losses caused by the defendant. Punitive damages, on the other hand, are strictly a form of punishment for egregious behavior, and are awarded to deter other defendants from similar behavior. Punitive damages require such reprehensible conduct that it justifies a deterrent. For example, a victim of a violent sexual assault at the hands of a co-worker can reasonably expect that the employer will take immediate measures to prevent future conduct (such as ensuring the victim is not scheduled for the same shifts or work areas as the perpetrator while the employer investigates the complaint). An employer who is made aware of the crime and continues to place the victim in danger may face punitive damages to deter other employers from ignoring critical safety lapses in their workplaces.
- It helps other victims tell their stories. Lately, advocacy efforts through #MeToo and similar campaigns have enabled many brave men and women to tell stories of sexual harassment, forming a powerful example of strength in numbers. With a network of support and other victims to rely on, many victims are telling their stories for the first time in decades—if ever. We cannot overstate the power of speaking up. Breaking the silence is the only way to hold others accountable for their actions.
Why Speaking up Is so Difficult
Of course, victims rarely find it easy to speak up and tell such a painful story. One of the greatest barriers is the imbalance of power that almost always exists between a victim and perpetrator of sexual harassment. This imbalance of power (whether physical, social, educational, or otherwise) is often the very reason the victim was targeted in the first place. Serial harassers, in particular, are known to prey upon those whom they perceive as weaker than themselves. These predators believe they can control and manipulate their victims through fear, intimidation, threats, and other strategies. Reporting their conduct and holding them accountable for their actions allows victims to reclaim some of this power. It also sends the message that the perpetrator will no longer control the victim.
Also, it is so difficult for sexual harassment victims to speak up because of another unfair advantage that the company and perpetrator has over the victim. For a victim of sexual harassment to be willing to come forward it takes incredible courage. Sometimes it takes days or weeks or months to screw up the courage to come forward. On the other hand, it takes the perpetrator or company only about one second to say “it never happened”—and we have seen, even with the sexual abuse allegations against our president, that a significant segment of our population will believe the perpetrator, even in the face of proof to the contrary.
Many power imbalances can exist in a workplace. The most common is a difference in power in positions. Supervisors and managers are perceived to have authority over those workers who report to them. While this is, to an extent, a reality of any workplace, it does not excuse any illegal conduct, including that which rises to the level of sexual harassment. An imbalance in positions often comes in addition to an imbalance in earning capacities or education levels. A victim may feel powerless because the harasser has more money (while the victim really needs this job), or because the harasser may be able to outsmart reports of illegal harassment. These, however, do not excuse illegal behavior. Importantly, California law recognizes this power imbalance and makes companies strictly liable for sexual harassment perpetrated by supervisors or officers of the company, even if the company didn’t know it was occurring at the time.
Other social imbalances can make a victim even more vulnerable to sexual harassment. Some predatory harassers seek out victims who lack legal work status, or are single parents, or have other personal circumstances that make them highly dependent on this particular job. Once again: None of these circumstances excuse illegal conduct. The best way to prevent a harasser from using these power imbalances to control a victim is to refuse to succumb to the threats. Attorneys and activists can help victims find help from social services agencies, immigration organizations, and other appropriate advocacy groups. They can also help victims seek redress through the court system.
Sometimes the power imbalance comes from the very nature of the employer itself. Many of the recent high-profile sexual harassment cases have brought to light exploitation of power by large, powerful organizations and figures in the community.
Former Fox News host Gretchen Carlson brought to light years of harassment, abuse, and cover-ups in the powerful network.
Harvey Weinstein’s accusers disclosed decades of sexual assault, sexual harassment, exploitation of power, and other egregious conduct that hundreds of people helped to excuse or cover up for many years. In some cases, Weinstein’s staff stands even accused of facilitating the illegal assault and harassment. This is yet another example of a powerful organization that worked hard to silence victims.
For decades, the system of oppression worked forcefully. Yet when the first victims spoke out, dozens—and then hundreds—of others followed suit. These women banded together to create an even more forceful power than Fox News or the Weinstein organization.
In addition to power imbalances, a common problem that leads to sexual harassment is the culture within a given workplace. Certain fields (especially professions that are commonly dominated by men) expect workers to be “one of the boys.” Workers who are uncomfortable with jokes, advances, and other aspects of the office culture are considered overly sensitive. They may get accused of not being team players or not understanding the business. What these accusations ignore is that a workplace’s “longtime culture” doesn’t make it inherently right—or even legal.
Often, in jobs where women are trying to break into traditionally male positions, women, who are afraid of losing their jobs and becoming ostracized, will attempt to be one of the boys until the sexual harassment becomes too much and they have to quit. When these women bring sexual harassment cases against the employer, the employer’s attorneys try to turn the table on the female plaintiff, claiming that she “participated” in the sexual harassment, thus she “asked for” the sexual harassment she later received. This is a particularly ugly defense given the fact that the woman is placed in an impossible position. Either she tries to join in the company’s culture to get along or, if she doesn’t, she is sure to be ostracized and then fired. Does a woman using some raw language to fit in deserve to be sexually assaulted? That is the position often taken by companies in a lawsuit.
While the work culture may certainly make some workers hesitant to speak up, it is nonetheless important to speak up. If workers cannot respond to feedback and the employer’s management does not take appropriate action to respond to complaints, the locker room office culture may, indeed, rise to the level of a hostile work environment.
An unfortunate problem with many sexual harassment cases is the focus on the victim’s conduct, rather than the harasser’s. To a large extent, this results from a long-standing media obsession with victims of sexual assault and sexual harassment. What was the victim wearing? Did she encourage any part of the illegal conduct? Could she have resisted it? Did she fight hard enough? For many decades, these questions have created a horribly misguided narrative about sexual assault and harassment in American culture. Finally, advocacy efforts are starting to shift the narrative back to where it belongs: powerful men and the organizations that protect them.
Unfortunately, some of the focus on a victim’s action is the result of legal tests that require the inquiry. The U.S. Supreme Court introduced a new standard for employer liability for sexual harassment in the 1998 decision, Faragher v. City of Boca Raton. When no tangible employment action is taken against the victim (such as demotion or firing), an employer may raise an affirmative defense to a sexual harassment claim. If the employer proves that (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm, then the employer is not liable for sexual harassment.
Employers who raise this defense force the victim to prove that they did report harassment, that the employer took unreasonable corrective measures, and that the victim suffered harm as a result. Shifting the burden back to the victim has trumped the longstanding problem of blaming the victim for sexual harassment or assault.
How an Attorney Can Help Victims Speak Up
Any statements made to the press or on social media can make an impact on a legal case. It is therefore important to coordinate any public statements with an attorney before making them. A legal representative often makes telling a difficult story easier, and having a representative can give a victim much-needed support during a trying time (especially when legal interests are at stake). An attorney can meet all of these requirements, smoothly coordinating a victim’s legal, emotional, and social needs.
Call a San Diego Sexual Harassment Lawyer Today
Telling a story of sexual harassment can prove difficult for any victim. It is, however, a critical step toward effecting change in a workplace, in a community, across a state, and even on a national level. The guidance of a skilled attorney can help sexual harassment victims tell their painful stories. If you were the victim of workplace harassment, call (800) 652-6137 today to schedule your free consultation with an experienced sexual harassment attorney at Winer, Burritt & Tillis LLP. We fight hard to protect victims and hold harassers accountable for their illegal conduct. Case by case, we hope to make the workplaces of San Diego safer for all employees.
**We do not represent perpetrators of sexual harassment or those who are accused of sexually harassing behavior.