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In a Post-Weinstein World, Will Laws Change to Support Workplace Sexual Harassment Victims?

labor and employment lawyers

Ever since The New Yorker’s shocking investigation into the dozens of sexual harassment allegations against media mogul Harvey Weinstein — and the people who allegedly helped to cover them up — the floodgates have opened for victims of sexual assault in the workplace to share their stories.

Although these reports of abuse span from the newsrooms of the country’s top publications to the kitchens of world-class dining establishments, the majority of the victims’ testimonies have an element in common: allegations of workplace harassment were swept under the rug to protect the reputation of a powerful individual or company.

Now, all of these accounts are out in the open, creating a national dialogue about how workplaces handle sexual harassment and gender discrimination, and whether the law puts undue burden onto victims to prove misconduct. But will anything actually change?

Today, we talk to Christina J. Thomas, a Morgan & Morgan attorney with extensive experience handling labor & employment cases, to get her insights about what these high-profile revelations could mean for workplace sexual harassment policies, and what needs to happen in order to truly help victims get justice under the law.

Statutes of Limitation Are Too Short

Online participants of #MeToo — a social media movement used to denounce sexual harassment and show how commonplace it really is — and other brave victims coming forward have done wonders for creating a conversation around sexual misconduct in the workplace.

The statute of limitation on workplace sexual harassment claims is extremely short...

But in so many of these cases, victims are speaking out years after the alleged incidents occurred, far beyond the scope of time during which they could file a harassment charge.

This window is much shorter than you would expect. That needs to change, Thomas says.

“A lot of the women who have complained of-late are complaining many years after something has happened. And currently, some states have as limited of a time frame within which you can bring an actionable claim for harassment as 180 days. In other states, it’s 300 days,” she said. “The statute of limitation on claims is extremely short. Hopefully President Trump and Congress will do something to extend those deadlines.”

Under Scrutiny: Confidentiality Clauses for Sexual Harassment Cases

Restrictive statutes of limitation are not the only thing victims have to contend with when trying to file a claim. It’s reported that Fox News Channel and Harvey Weinstein’s company used nondisclosure agreements, arbitration clauses, and confidentiality clauses.

“With confidentiality agreements, the sole purpose is to silence the victims,” Thomas says.

They allegedly paired conditions that forced victims into private arbitration proceedings with hefty settlements to ensure that employees who have sued for harassment would stay quiet about the details of their case.

"A lot of people don’t have a lot of choice where they work. They’re stuck in the job that they’re in, they don’t have a lot of mobility, and they feel like they have to put up with certain things.”

While NDAs are most commonly used by businesses to protect intellectual property and trade secrets, the use of NDAs in cases that involve sexual harassment has increasingly come under scrutiny. One California state representative is even planning to introduce a bill banning confidentiality provisions in monetary settlements for sexual harassment, according to Forbes.

Furthermore, these agreements suppress evidence and protect the reputations of the harasser and their employer. This results in a toxic work environment that endangers employees who are unknowingly and unwillingly working among people accused of committing serious acts.

Leaving a toxic work environment is not always easy.

“A toxic work environment is created initially by the harassing individual — whether male or female — who thinks they can practice the art of seduction in the workplace,” Thomas said. “A lot of people don’t have a lot of choice where they work. They’re stuck in the job that they’re in, they don’t have a lot of mobility, and they feel like they have to put up with certain things.”

Workplace Training Simply Isn’t Enough

In the wake of these sexual harassment allegations, many employers — including the U.S. Senate — have pushed for increased sexual harassment training. This training is intended not only to teach employers how to report harassment and the consequences of inappropriate conduct, but how to identify it in the first place.

The legal standard for suing someone for sexual harassment is impossibly high...

Only three states — Connecticut, California, and Maine — require sexual harassment training for employers. However, many companies already provide robust training to prevent liability on their part in the case of an incident.

“Most large employers do have training in place about sexual harassment, even though the states where they operate don’t require them to,” Thomas said. “The reason why they have those is because in the event that a manager harasses someone, they can argue to the court and say ‘Listen, we trained everybody, this manager knew he wasn’t supposed to do this, he's acting out of the scope of his job. This employee knew she could complain, she didn’t do so, therefore the corporation shouldn’t be on the hook.'”

Clearly, the training is there, yet workplace harassment persists. But it’s not because employers, supervisors, and victims are unable to recognize signs of harassment, or need more training to learn how to report it: it’s because the legal standard for suing someone for sexual harassment is impossibly high, says Thomas.

“Under federal law, there’s a requirement that the harassment be either severe or pervasive in the hostile work environment context,” Thomas said. “Some courts have said even repeated cat calls are not enough to rise to the level of discrimination based on gender.”

Worse yet, the U.S. Supreme Court has placed a requirementon sexual harassment plaintiffs stating that these plaintiffs cannot claim a hostile work environment unless they complain to their employer and give them the opportunity to remedy the situation, with some occasional exceptions.

The likelihood of a workplace sexual harassment victim ever seeing their day in court is less than one percent...

“Those are two hurdles — aside from the statute of limitations issue — that litigants have to get over just to bring a claim of harassment,” Thomas said. “As far as holding the corporate entity liable in civil court, the standard is almost impossible. In fact, most of what people are complaining about now, in the public view, would not even be actionable in a lawsuit context.”

The statistics support this. In 2015, 12,205 employment civil rights cases — which include sexual harassment cases as a subset— were filed in U.S. District Courts, but only 1.1 percent of these lawsuits reached a trial on the merits.

Essentially, the likelihood of a workplace sexual harassment victim ever seeing their day in court, pleading their case to a jury of their peers, is less than one percent when compared to other types of cases filed in federal courts.

How Do You Report Harassment in Workplaces without HR?

Many of these alleged assaults also highlight the difficulties victims face when dealing with harassment in workplaces without a formal human resources department.

This can include workplaces like the restaurant industry, which has garnered a reputation for underreported on-the-job harassment and gender discrimination, especially after celebrity chef John Besh stepped down from his company amid more than two dozen female employees’ allegations of sexual harassment. Film and television production sets are also notorious for harassment, and how little is done to protect those who suffer it. Blake Lively and Zoe Kazan are just two prominent actresses to share allegations of sexual harassment on set in the past few months alone.

But there is a growing group of workers who must contend with a lack of sexual harassment protections under law: independent contractors.

This doesn’t just include workers like Uber and Lyft drivers, although these workers have become the face of the debate about independent contractors and labor laws. Models and actresses — the alleged victims of harassment and assault by celebrity photographer Terry Richardson and Harvey Weinstein — also make up the ranks of independent contractors. And these professionals have little recourse if they experience harassment, especially if it occurs while interviewing for a prospective role.

“It’s a big issue,” Thomas says. “We have a movement in this country to classify large swathes of workers as independent contractors, and that’s a problem. None of these federal statutes apply to independent contractors; they only apply to employees.”

“And while you can make the argument that even though someone is called an independent contractor, they’re still an employee, it’s still a whole other layer on the cake that you have to bake up for the court to prove harassment, and it just makes it harder,” she added.

How Can Colleagues Help Fight Workplace Harassment?

Although laws surrounding sexual harassment need to change in order to allow victims to get the justice they deserve, allies may be wondering what they can do right now to help their colleagues if they observe sexual harassment in their workplace.

Thomas encourages them to report the harassment. By being part of an investigation after reporting the harassment, they could be protected from retaliation.

“Let’s say there’s harassment going on, and HR gets involved, and someone becomes a witness for that investigation. They are essentially under what’s known as the ‘anti-retaliation’ portion of the law,” Thomas said. “So if they get fired for speaking up, or complaining, they could potentially have a retaliation claim.”

However, similar to bringing a claim of sexual harassment itself, the burden of proof in retaliation claims after alleging workplace harassment is high. To bring a claim of retaliation, you must show a direct correlation between your complaint of witnessing harassment in the workplace and the subsequent punishment, according to Thomas. And that is far from easy.

“If an employee goes to complain about harassment in the workplace that they have witnessed, then that same employee shows up to work late the next day, the employer can fire that employee for being late — if it’s a violation of company policy to be late — the same as they would anyone else,” Thomas said.

So those who try to assist a coworker by becoming a witness for an investigation could unfortunately still face retaliation, too, despite anti-retaliation statutes. This needs to change as well, if we want to see a workplace culture that encourages people not to be silent bystanders of abuse.

What Can Companies Do?

Companies can also do their part to make changes to bring about a culture of workplace equality as we wait for sexual harassment policy to change on the federal level. One policy could make a big difference in empowering women to come forward to report harassment in the workplace, and it may not be what you would expect: pay transparency.

"With a lot of sexual harassment cases in the workplace, they’re not even about sex. They’re about power."

“Disclose how much men and women make — complete transparency about the earning capacity within job positions,” Thomas said. “Disclosing pay does two things: one, it helps equalize pay, but also, I think a lot of women don’t come forward because they have this perception that the men that they work with are more powerful than they are.”

“In fact, if women were given this information about pay, that would embolden women to say ‘That man doesn’t make that much more than I do, he’s not so different from me,’” she added. “With a lot of sexual harassment cases in the workplace, they’re not even about sex. They’re about power. It’s about someone wanting to assert dominance over someone else.”

Laws Need to Change

The outpouring of high-profile workplace sexual harassment allegations has served an important role in getting our country to talk about workplace equality and safety, and that conversation shows no sign of ending anytime soon.

But until labor and employment laws change to address the unreasonably high burden of proof workers currently face in proving their claims of harassment, talking simply won’t be enough to get justice for these victims.

If you want to nip it in the bud, you have to make some of this criminal.

“What I’m hoping will happen is that President Trump and Congress will take actions to strengthen the sexual harassment workplace laws,” Thomas said. “I do think the movement is going to empower women to speak out, but from an employment law standpoint, that’s not going to do them much good.”

“I think the most effective means of curtailing workplace harassment is actually increasing the penalty for the defendant, and lowering the abnormally high hurdles for sexual harassment claims,” she added. “Allow plaintiffs a longer time to file suit, get rid of the requirements that they go through the federal government, streamline litigation, and increase penalties. And if you want to nip it in the bud, you have to make some of this criminal.”