The topic of sexual harassment has been trending in the news, prompted by the revelations made against Harvey Weinstein and many other men by women who allege harassment by these men, some of these allegations occurring many years ago. There are conflicting opinions as to whether and how to report sexual harassment, what the likely outcome of said reporting will be for the accuser, and even what is interpreted as sexual harassment by women of various ages. For example, in October, 2017, The Philadelphia Inquirer ran an interview with a seasoned lawyer about her experiences in handling sexual harassment cases. Although her responses appeared a little blunt, they resonated and affirmed not only my experiences but, indeed, the experiences of any seasoned employment lawyer in handling such cases.
The interview unleashed a barrage of vitriolic criticism attacking the lawyer, with many people expressing dismay at her advice and conclusions, and some even calling her views dangerous. Therefore I have decided to examine some of the lawyer’s comments and compare them to the reality of pursuing a sexual harassment claim.
Is it a bad idea to complain about sexual harassment in the workplace?
That depends on the workplace and whose responsibility it is to handle the complaint. The law generally requires an employer to investigate a sexual harassment complaint and remedy it if the complaint is substantiated. The investigation is under the sole control of the employer. In an investigation, the accuser and the accused start off on an equal footing, and quite often the accused is someone’s supervisor. That supervisor is often in their position because the company’s higher-ups see something to admire and promote in the supervisor. Frequently, this perception already skews the investigation. An employer can conduct an investigation (or say they did) without providing the accuser with information about how that investigation was conducted, and who was interviewed. The accuser is never present for the interviews, and often the people the accuser suggests be interviewed are not.
Even if the employer decides to remedy a complaint, that remedy usually does not involve terminating the accused harasser. It may involve training, or moving the accused or the accuser to another position or department or location. When the accuser is moved to a new position, they face the risk of retaliation, as most companies no longer want the accuser as an employee because they are concerned that the accuser will accuse another supervisor. Often the new supervisor of the accuser, of either sex, is leery of the accuser, who is often labeled as a complainer and not a team player. Even worse, if the employer finds the accuser’s allegations not to be substantiated, which is possible as often there are no witnesses of the harassment, the accuser is considered to be untrustworthy.
The lesson to be learned is if you are going to complain about sexual harassment you need to be aware that said complaint may cost you your job. If you don’t care about losing your job, or if you plan to leave anyway, that is fine. But if you leave there probably won’t be an investigation, so the accused can then go on to harass other people. Even if there is an investigation, it will be private, as will any remedy. Consequently, others won’t learn about your efforts and the remedy won’t necessarily have a deterrent effect on the accused.
Is Human Resources Your Friend?
“Human Resources (“HR”) is not your friend,” the lawyer stated in the article. This is true, with few exceptions. HR employees are paid by the employer and their job is to protect the employer. It is human nature for people to not bite the hand that feeds them. It is HR’s decision as to whether they want to conduct an investigation of a complaint, who will conduct the investigation, and what the remedy will be. An HR employee may start out as sympathetic, but over time, chronic complaints will often turn HR against the complainer.
Are the Client’s Goals Realistic?
The lawyer’s final comment was that she only accepts clients with realistic goals, such as seeking a fair financial settlement, as the law doesn’t deliver “justice” or “vengeance.” Those who disagreed with this assessment argued that financial settlements will allow complaints to be swept under the rug and will allow other women to continue to be harassed.
Although clients often say they want their day in court, the reality is that to pursue a sexual harassment complaint to litigation is financially costly. Litigation routinely can cost hundreds of thousands of dollars and continue for years. Even if an attorney agrees to accept the case on a contingency fee basis, the costs are often very substantial, and someone, normally the accuser, has to pay the costs. Also, there is the possibility that the accuser, if she loses her case, will have to pay the opposing party’s costs. The end result may not really impact the harasser, as the employer or the insurance carrier will bear the brunt of an award of the accuser prevails in her case. In some cases the accuser has been sued by the accused for damages, and having to defend such a lawsuit can also be costly, and may result in an award of damages.
Additionally, the components of a sexual harassment complaint are often more emotionally devastating than allegations of other types of discrimination. If the case proceeds to litigation the accuser must expose her life and personal history to examination, which is embarrassing and may result in victim shaming.
Some of the lawyer’s critics pointed out that government agencies, such as the Equal Employment Opportunity Commission (“EEOC”), exist for the purpose of filing, investigating, and remedying sexual harassment complaints via sanctions and the imposition of huge monetary damages. That is not the reality of how these agencies handle these complaints. The EEOC prefers big impact cases. If one examines their settlement history, their settlement numbers for individual cases are not impressive.
Agencies are often understaffed and underfunded, and investigations, if they are conducted, are not conducted by attorneys, but by folks that generally interpret the law in a straightforward manner, without creative or nuanced interpretations that private lawyers develop. Most of these investigations are inconclusive or do not support the accuser if the employer provides some form of pushback.
So while a lawyer’s advice may seem abhorrent – that one should cope with sexual harassment, find other women to support you, hang in there, try and leave your department, try to outlast the accuser, or quit – this is generally an unfortunate reality and one of the dirty secrets of sexual harassment.
Faye Riva Cohen, Esquire, president of the Law Office of Faye Riva Cohen, P.C., focuses her practice on labor, employment, and civil rights law. You can learn more about her firm here: www.fayerivacohen.com.