Articles Posted in Sexual Harassment

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In Minnesota, the legislature is debating a bill that would expand the types of sexual harassment that would violate state law.  The bill would overturn court decisions which require sexual harassment to be “severe or pervasive” to be illegal.  If passed, this bill would provide a powerful incentive to employers to do even more to address the epidemic of sexual harassment in the workplace.

Both federal and state courts use the “severe or pervasive” standard to distinguish between harassment that an employee can sue her employer for and harassment that she cannot.  There are numerous examples of court cases where courts applied this standard and dismissed cases where many people believe the harassment should have been unlawful.  For example, in one case from Alabama, a court held that harassment was not “severe or pervasive” even though it included a man doing things to a female subordinate such as knocking her over onto a couch and asking her to “blow” him; propositioning her for sex; referring to women as “tramps,” “sluts,” and “bitches;” playing with his zipper in front of her while saying “hey babe;” and other crude sexist conduct.

If this Minnesota bill becomes law, it is unclear where Minnesota courts will draw the line between actionable harassment and unactionable harassment.  They could decide that any sexual harassment, no matter how severe or pervasive, is actionable.  In which case, women who experienced minor forms of sexual harassment could get very small amounts of monetary relief if they sued.  But perhaps even more important than providing some monetary relief, those lawsuits could permit the courts, through their powers to order “injunctive relief,” to force employers to take actions to better prevent and correct sexual harassment.

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Uber recently capitulated to public pressure and decided to no longer require victims of sexual harassment or assault to bring their individual claims against the company through arbitration. Uber, like many companies, puts arbitration clauses into the fine print of agreements that employees, drivers, and passengers must agree to in order to do business with Uber. Just about no one reads this fine print and many probably would not understand what the fine print meant even if they read it.

Arbitration, when used appropriately, can be an efficient and fair process. It can be fair when the parties to the agreement have equal bargaining power and one party does not have a built-in advantage over another if a dispute goes to arbitration. For example, companies and unions often agree to use arbitration and that process is usually fair and efficient. However, the way Uber and many other companies use arbitration, serious problems can get swept under the rug and go unaddressed because arbitration is often secretive and slanted in favor of large companies.  (Please see other posts on this blog regarding arbitration for an explanation of why it is problematic.)

For these reasons, Uber faced increasing pressure to permit sexual harassment and assault victims to pursue claims against the company in court, instead of through arbitration. Interestingly, Uber only exempted sexual harassment and assault claims from the arbitration process. So, for example, if the company systematically discriminated against racial minorities, those claims would still have to go through the unfair arbitration process. Furthermore, Uber’s arbitration fine print still does not permit people to file class actions against the company for sexual assault or harassment.

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Our law firm receives many calls from people who are experiencing sexual harassment at work.  They usually want to know their rights and some advice on what they can do to try to get the harassment to stop.  Our firm is happy to help but there is also another resource that everyone concerned about sexual harassment in the workplace should know about – MaineCanDo.org.

MaineCanDo.org sprung out of the #metoo movement.  It contains helpful resources and guidance for individuals and organizations, including victims of sexual harassment and people who want to help victims.  You can go to the website if you want information about your rights and how you can enforce them.  There are also links to resources for victims of sexual harassment, such as the advocates at the Maine Coalition Against Sexual Assault (MECASA).

An increasing number of employers are taking the #MaineCanDo pledge to do more to prevent and address sexual harassment in their workplaces.  MaineCanDo.org also contains a lot of helpful information for employers to assist them in combatting sexual harassment in their workplaces.  If your employer is not on the list of organizations that has taken the #MaineCanDo pledge, you may want to ask your employer if it will take the pledge.

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The U.S. Equal Employment Opportunity Commission (EEOC) announced last month that it had filed a lawsuit against an Arby’s franchisee because of sexual harassment teenage employees had experienced. The Arby’s franchise at issue hired a team leader with a known history of sexual harassment who pressured young female employees to have sex with him, attempted to follow female employees home, and physically injured one of his victims. The EEOC alleges that management knew about the harassment but took no action to stop it for several months.

Unfortunately, the facts of this case are very common. According to a study by the EEOC, young workers are more likely than older workers to work in places where sexual harassment occurs. Sexual harassers often victimize young employees because, due to their lack of work and life experience, young employees are less likely to know their rights, they are less likely to understand typical workplace norms, and they are less likely to complain about older and more powerful people.  The EEOC has a helpful website for young workers that can assist them if they believe their rights are being violated.

The restaurant industry is also a hot zone for sexual harassment. Some of the lowest paid workers in the economy work in restaurants. Harassers know that these low paid workers are especially scared of retaliation if they complain about harassment. Low paid workers often do not have much money saved and if they lose their jobs, they can quickly become destitute. Many restaurants frequently have corporate management located in places far removed from the front line employees and this can lead to harassers feeling less afraid that they will get in trouble.  Alcohol consumption is also more common in the restaurant industry than other industries and that can lead to higher rates of sexual harassment.

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Most people understand that many victims of sexual harassment go through horrible emotional and psychological turmoil. However, many people do not realize that sexual harassment victims also suffer physical bodily harm due to the harassment. A recent study, for example, explains how sexual harassment can cause harm to the victim’s cardiovascular system, stiffening her blood vessels and harming her heart.

“People often think of harassment as a single event, but much more commonly, it’s a process that happens over time. You keep going to work day after day while this stuff keeps happening,” said Louise Fitzgerald, who has studied harassment in utility workers, office settings and factories. “It’s that prolonged exposure to stress that turns into a physiological reaction.”

This link between psychological trauma and bodily harm should not surprise people who have suffered from psychological trauma. People, for instance, who suffer from post-traumatic stress disorder (PTSD) experience disproportionately high amounts of physical health problems. According to the U.S. Department of Veterans Affairs, a “growing body of literature has found a link between PTSD and physical health. Some studies have found that PTSD explains the association between exposure to trauma and poor physical health. In other words, trauma may lead to poor health outcomes because of PTSD.”

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guard-tower-2639113_1920-300x200Female corrections officers experience sexual harassment at alarming rates and many prisons illegally fail to protect them from this harassment. The Washington Post recently ran a story about this serious problem.

In recent years, female corrections officers who have banded together and opposed sexual harassment have had success with legal action. Last year, for example, the Federal Bureau of Prisons agreed to settle a sexual harassment class action for $20 million and, as part of the settlement, agreed to make procedural changes that will help to prevent sexual harassment from recurring in the future.

The sexual harassers in prisons are often inmates. Many female corrections officers work in environments where male inmates threaten to rape them and masturbate in front of them. Even though prisons have a huge amount of control over inmates and the ability to severely discipline them for this conduct, some prison officials refuse to do so. Instead, they fault the women for complaining about the sexual harassment accusing them of having “thin skin” and telling them that they work in a “man’s world.”

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The New York Times recently published an article that discussed a variety of steps that experts say employers can take to reduce the amount of sexual harassment in the workplace. This article provides helpful information that you could present to your employer if it is interested in addressing problems of harassment in the workplace.

The experts who spoke to the New York Times identified five things that employers should do:

(1) Bystander training – Oftentimes victims of harassment have allies that do not know how they can best help the victim. Employers should train employees on how they can help victims. This type of training is still rare in companies but colleges, the military, and non-profit organizations have successfully used it.

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With the current cultural emphasis on the epidemic of sexual harassment in the workplace, it is a good time to discuss how the law can help victims. Laws that prohibit sexual harassment aremetoo-2859980_1920-300x200 one tool that can be used to help victims.

There are state and federal laws that prohibit sexual harassment. In most cases, a victim of sexual harassment has 300 days from the last date of harassment to pursue legal action. The first legally required step in most cases is to file a charge of discrimination with the Maine Human Rights Commission (MHRC) or the U.S. Equal Employment Opportunity Commission (EEOC). The MHRC or EEOC will investigate your charge but in the vast majority of cases neither the MHRC nor EEOC will pursue legal action against the employer. For that reason, it is important for you to have legal representation when you file your charge because you’re most likely going to have to press your case yourself.

There are two major things victims of sexual harassment must show in order to prevail in a lawsuit. First, the victim must show that they experienced harassment that was so severe or pervasive that it affected their employment, unreasonably interfered with their work performance, or created an intimidating, hostile, or offensive work environment. Second, the victim must prove there is a basis to hold their employer liable for the harassment. The standard for proving employer liability varies depending on the harasser’s position within the employer’s hierarchy and the form of the harassment. The EEOC has regulations and guidance that discuss the different legal standards but, basically, the higher the harasser is in the employer’s hierarchy, the easier it is to hold the employer liable for the harassment.

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The epidemic of sexual harassment and assault has received a lot of attention recently because of high profile cases like movie producer Harvey Weinstein, actor Kevin Spacey, journalist Charlie Rose, and many others. The news has spawned a viral social media hashtag “#metoo” which women have used to inform others that they, too, have suffered from sexual harassment or assault. All of this publicity has focused a spotlight on this problem and there appears to be momentum building toward changing the culture that has allowed this epidemic to persist for so long.

Victims of workplace sexual harassment and assault usually do not report the people who harass or assault them. A recent study “found that gender-harassing conduct was almost never reported, and unwanted physical touching was formally reported only 8% of the time.” The study also found that “even sexually coercive behavior was reported by a mere one-third of the women who experienced it.” Instead, victims of sexual harassment and assault typically respond by avoiding the harasser, downplaying the severity of the harassment, or just enduring the harassment. Victims of sexual harassment fear that the response to a complaint will be disbelief, victim blaming, inaction, retaliation, ostracism, or harm to the victim’s reputation. The fear of retaliation is particularly well-founded; studies show that the majority of employees who speak out about workplace harassment experience some form of retaliation.

One way that victims of sexual harassment and their allies can change these trends is to band together and speak out about the harassment. If you are a victim of sexual harassment, you most likely are not the harasser’s first victim and, if the harasser is not held accountable, you most likely will not be the last victim either. In dealing with workplace sexual harassment, there is strength in numbers. Talk to people in the workplace who you trust to find out if there are other victims, even victims who no longer work for the employer. Encourage other victims and people who know about the harassment, against both you and others, to stand up with you and demand that the harassment stop.

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A tech entrepreneur recently took a novel approach to ensure that members of her company’s board of directors cannot engage in sexual harassment and keep their positions. The entrepreneur, Kristina Bergman, is the CEO of Integris Software. Bergman added a clause to stockholders’ voting agreements that requires them to vote out a director if there is a “reasonable probability” that they sexually harassed someone.

Typically, directors are only removable for cause, such as if they embezzle money from the company or engage in fraud. Bergman’s approach is novel but it is smart given how rampant sexual harassment is in the tech industry. Hot startup companies, like Uber, and some of the venture capital firms that fund them, like Binary Capital, have come under fire for sexual harassment. Bergman wanted to try to prevent the problem that has dogged these companies from infecting hers.

Notably, the standard of “reasonable probability” is intended to be lower than the standard of proof required to hold someone responsible for sexual harassment in court. Bergman and the lawyer who helped her draft the stockholder voting agreement wanted to avoid protracted legal fights.