I hate sexual harassers because I hate bullies. I hate them because they exploit physical and economic power over women. I hate them because they choose not to control themselves. I hate them because they disrespect women. I hate them because they make the world a less fair and less safe place. When I represent a woman in a sexual harassment case, while I may be wearing a suit and tie, this is the man underneath who fights for her. He runs five miles a day and benches 250 lbs.
One thing I have learned in 22 years of practice is that when it comes to sexual assault in the workplace, where there is smoke, there is fire. In every sexual assault case I’ve handled, the perpetrator assaulted multiple victims. In one negligent hiring case, the perpetrator who sexually assaulted my client had a prior criminal record for sexual assault. In another sexual assault case, the COO and co-owner who sexually assaulted my client had engaged in sexual misconduct with another female co-worker. In another sexual assault case, the perpetrator had sexually assaulted a half dozen women at work, four of whom I represented. And in yet another sexual assault case, the perpetrator had a 20-year history of complaints by other women who had accused him of sexual assault and other forms of sexual misconduct at work.
So when I see multiple women accuse Supreme Court nominee Brett Kavanaugh of sexual misconduct, I see compelling evidence that Kavanaugh did what they say. Even Kavanaugh’s friends say that he frequently drank excessively and became confrontational and aggressive when drunk. Whatever memories Kavanaugh may have of his alcohol-fueled youth would be clouded by his high state of intoxication, probably to the point where much of his own behavior he cannot recall. So between the several women who have charged Kavanaugh with sexual misconduct, his character as an aggressive drunk, and his inability to refute the allegations against him due to his impaired memory, it’s no wonder that the majority of Americans are asking how can this even be a close call. The man is not qualified to sit on any court let alone the highest court of the United States. The Republicans who are ramrodding him through the confirmation process are a disgrace.
Workplace sexual harassment is real; it happens, and it happens a lot. Study after study has shown that it is one of the most harmful, traumatic power abuses that can be perpetrated against a victim. There’s no understating the seriousness of the problem, or how poorly the legal system, the political system and the right wing media have responded to it.
In Minarsky v. Susquehanna County, 2018 WL 3234243 (3d Cir. July 3, 2018), the Third Circuit reversed summary judgment for the employer because a jury could find that the sexual harassment victim was reasonable in not reporting the harassment for four years. In a footnote that will be cited for years to come, the Court said:
This appeal comes to us in the midst of national news regarding a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims. It has come to light, years later, that people in positions of power and celebrity have exploited their authority to make unwanted sexual advances. In many such instances, the harasser wielded control over the harassed individual’s employment or work environment. In nearly all of the instances, the victims asserted a plausible fear of serious adverse consequences had they spoken up at the time that the conduct occurred. While the policy underlying Faragher-Ellerth places the onus on the harassed employee to report her harasser, and would fault her for not calling out this conduct so as to prevent it, a jury could conclude that the employee’s non-reporting was understandable, perhaps even reasonable. That is, there may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead, they anticipate negative consequences or fear that the harassers will face no reprimand; thus, more often than not, victims choose not to report the harassment.
Recent news articles report that studies have shown that not only is sex-based harassment in the workplace pervasive, but also the failure to report is widespread. Nearly one-third of American women have experienced unwanted sexual advances from male coworkers, and nearly a quarter of American women have experienced such advances from men who had influence over the conditions of their employment, according to an ABC News/Washington Post poll from October of 2017. Most all of the women who experienced harassment report that the male harassers faced no consequences. ABC News/Washington Post, Unwanted Sexual Advances: Not Just a Hollywood Story (Oct. 17, 2017), www.langerresearch.com/wp-content/uploads/…
Additionally, three out of four women who have been harassed fail to report it. A 2016 Equal Employment Opportunity Commission (EEOC) Select Task Force study found that approximately 75 percent of those who experienced harassment never reported it or filed a complaint, but instead would “avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget, or endure the behavior.” EEOC Select Task Force, Harassment in the Workplace, at v (June 2016), www.eeoc.gov/eeoc/task_force/harassment/upload/… Those employees who faced harassing behavior did not report this experience “because they fear[ed] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.” Id.; see also Stefanie Johnson, et al., Why We Fail to Report Sexual Harassment, Harvard Business Review (Oct. 4, 2016), hbr.org/2016/10/why-we-fail-to-report-sexual-harassment (women do not report harassment because of retaliation fears, the bystander effect, and male-dominated work environments).
Ken Cooper recently outlined what he called the “six levels” of sexual harassment. His summary is useful and worth walking through. But he omits an important feature of sexual harassment present in many, many cases: implicit or explicit threats of retaliation if the victim reports the harassment. Let’s take a look at Cooper’s six levels and then add what he left out.
Level 1 according to Cooper is “Aesthetic Appreciation.” This includes the seemingly non-aggressive compliment about a woman’s (or man’s) physical or sexual features. It’s a lifted eyebrow, wink, wolfish smile or a sexual joke. Individually, such comments merely sound rude. But, they can be offensive, too, particularly when they’re constant over time.
Level 2 is “Active Mental Groping.” “Mental Groping” is undressing someone with your eyes. It’s staring at certain body parts. It’s the more vicious, crude or insulting joke or innuendo. There’s been no physical contact yet, but it almost feels the same.
Level 3 is “Social Touching.” “Social Touching” is physical contact that carefully stays within the bounds of semi-acceptable behavior. It’s the unnecessary hand on the shoulder, on the small of the back or around the waist. It’s giving someone — usually a female lower on the corporate ladder — an unasked-for backrub or hug.
Level 4 is “Foreplay Harassment.” “Foreplay harassment” is where the touching starts to push the boundaries. The offender escalates the touching into more sensitive areas. The hand moves farther down the small of the back or is wrapped around the waist onto the stomach. A hand is draped over the shoulder. A woman is ushered around by the top of her arm, allowing the offender’s hand to brush up against her breast. This behavior also occurs when the offender stands closely behind someone who’s seated so she’s eye-to-zipper should she swivel around. It’s bar-level pickup lines said jokingly, but actually aimed at asking for sexual favors.
Level 5 is “Sexual Abuse.” “Sexual abuse” is touching of a sexual nature, such as pinching, grabbing or brushing up against sexual areas of the body.
Level 6 is “Ultimate Threat.” “Ultimate Threat” is not the right label; Cooper should call it “Ultimate Act.” “Ultimate Act” means a physical sexual assault, or the threat of assault unless there is compliance.
What Cooper leaves out are implicit or explicit threats of retaliation. All workplace sexual harassment is coercive, communicates expectations about compliance and the threat of consequences if the victim takes a stand. Sometimes the harasser is sufficiently powerful that he or she can make a phone call and end a career. Sometimes the harasser can take other actions to make his victim’s life miserable. Examples would be a bad performance review or changing her job duties. In this way, workplace sexual harassment is inherently extortionate.
We are Pittsburgh sexual harassment lawyers who can help people who have been sexually harassed at work. Call us at 412-258-2250 or email [email protected]
Researchers identify at least three different forms of sexual harassment. “Gender hostility” refers to derogatory comments or actions that invoke sex or gender, rather than explicit requests for sex. Sexist hostility is specific to gender (for example, someone makes a joke about women in a meeting. Sexual hostility has a sexual component (for example, someone asks about a co-worker’s sexual activities. “Unwanted sexual attention” includes unwelcome attempts to initiate sexual or romantic relations (for example, someone repeatedly asks a co-worker out on dates, sends them sexual texts, or touches them in sexually inappropriate ways. “Sexual coercion” involves many of the same behaviors as the unwanted sexual attention, but comes with a threat of consequences — such as being fired or refused a promotion — for not cooperating.
Epidemiologist Rebecca Thurston has spent years studying women who have suffered sexual abuse and harassment. She finds that over time, sexual harassment works like a poison, stiffening women’s blood vessels, worsening blood flow and harming the inner lining of their hearts. More than a dozen other studies show that sexual harassment causes physical symptoms such as headaches, gastrointestinal problems and disrupted sleep. Sexual harassment lasts for longer than six months in more than a quarter of cases, according to surveys of harassment in the military, which are required by law and therefore among the most comprehensive. During that period, a woman’s body reacts strongly: the immune system suffers, inflammation increases, and the body begins secreting higher levels of cortisol, which contributes to high blood pressure, high cholesterol, weight gain, impaired memory function and depression. The negative effects can linger for years.
One of the most comprehensive studies tracked 1,654 employees at an unnamed Midwestern university over the course of six years. The 2005 study, published in the Journal of Business and Psychology, found that those who experienced sexual harassment were more prone to sickness, illness and accident, and not just around the time they experienced the harassment. When researchers surveyed the group again years later, the harassment continued to have an enduring effect on their rates of illness, injury and accident.
The mental strain of harassment also often leads to depression, anxiety and other disorders. In recent years, studies have shown sexual harassment makes women more likely to drink as a way of coping. Harassed women are also more likely to develop eating disorders. Researchers have shown the harmful effects even trickle down to co-workers who witness or hear of the harassment, a phenomenon analogous to secondhand smoke.
Among the most debilitating effects is post-traumatic stress disorder. A 2015 study found that 20 percent of female veterans of the Vietnam War suffered from PTSD – not because of the war itself but largely due to sexual harassment they suffered from their male counterparts.
Sexual harassment can make a woman feel powerless. But you can take back your power and we can help. Call, email or text us if you have been sexually harassed at work. And in the meantime, remember these tips:
Speak up. Tell the harasser his conduct is not professional and not welcome. Do it in a text or an email. And tell him if he doesn’t stop, the next person you contact will be HR or his boss.
Consult your employer’s sexual harassment policy and do what it tells you to do. Your employer wants to know if sexual harassment is occurring. If you don’t tell it, it might never find out. Worse, if you wait and say nothing, it might later say you made your story up. So don’t fear reporting the harasser to HR or to upper management. And be specific about what the harasser said and did. If your supervisor is the harasser, take your complaint to his boss.
Keep a record of any harassment episodes, your complaints, and any incidents related to the harassment — including dates, times, persons involved, and what was said.
You have a right to work without being sexually harassed. Don’t be afraid to reach out for help. Contact us today.
What is workplace sexual harassment? Sexual harassment in the workplace is an umbrella term that encompasses a range of unwanted behaviors. This includes nonphysical harassment, including suggestive remarks and gestures, or requests for sexual favors. Physical harassment includes touches, hugs, kisses and coerced sex acts. It can be perpetrated by anyone — a manager, a colleague, a client. The perpetrator or the recipient may be male or female. It does not need to occur inside the office. Your employer could still be responsible for failing to prevent the sexual harassment, or for failing to handle it appropriately.
If you have experienced or witnessed sexual harassment and you want to take action, you have a number of choices. But first:
Whatever you plan to do, keep notes and evidence. After an incident of sexual harassment it important to write down what
happened, what was said or touched, who did it, whether anyone was around to witness what happened, where you were, what the time was. Take screenshots of texts, print emails, do what you need to do. Keep notes in a bound notebook do not store information on any of your devices. If there is any physical evidence — for example, a dress with fluids on it or pornographic images — save it. When investigating or reporting on a complaint of sexual harassment, accusers will often be asked if they had confided in a friend, family member or colleague at the time of the event or events. Even if you never plan on taking action, confiding in someone at the time can be helpful if you change your mind about taking action
Now, for your options:
- Contact an experienced sexual harassment lawyer immediately. Typically, you only have 180 days from the last act of sexual harassment to file a complaint with the appropriate federal or state agency. Don’t delay on this. Sexual harassment lawyers typically work on a contingent fee basis so that you are not paying by the hour.
- File a criminal complaint. But do this in consultation with your sexual harassment attorney. Generally, in cases where the harassment included physical touching, coerced physical confinement or coerced sex acts, it could be considered a crime.
- Notify your employer verbally and then in writing. Consult your employee handbook for your employer’s sexual harassment policy and follow the steps it sets forth. If the harasser was your boss, report to someone up the chain or to Human Resources. Reporting to your employer is critical because if you think you may want to file a lawsuit against the employer in the future, you have to report the harassment to your employer first. Otherwise, the employer has a defense. Make sure all of your attempts at reporting the sexual harassment are documented. Write down everything and put everything in writing.
- You can go to a federal, state or local agency. At the federal level, you can go through the Equal Employment Opportunity Commission. In Pennsylvania, the state agency is the Pennsylvania Human Relations Commission. Filing a Charge or Complaint with these agencies is required before you can file a lawsuit in court. Your sexual harassment lawyer will help you with this process.
Contact legal counsel immediately. Call us at 412-258-2250 or email us at [email protected]
Check to see if your employer has an anti-harassment policy. This may be on the employer’s website. If it’s not, check your employee handbook. Finally, you can ask any supervisor (it does not have to be your supervisor) or someone in Human Resources (if your employer has an HR department) whether there is an anti-harassment policy and if so, to give you a copy.
If there is a policy, follow the steps in the policy. The policy should give you various options for reporting the harassment, including the option of filing a complaint.
If there is no policy, talk with a supervisor. You can talk with your own supervisor, the supervisor of the person who is harassing you, or any supervisor in the organization. Explain what has happened and ask for that person’s help in getting the behavior to stop.
The law protects you from retaliation (punishment) for complaining about harassment. You have a right to report harassment, participate in a harassment investigation or lawsuit, or oppose harassment, without being retaliated against for doing so.
You always have an option of filing a charge of discrimination with the EEOC to complain about the harassment. There are specific time limits for filing a charge (180 or 300 days, depending on where you work), so contact EEOC promptly. See EEOC’s How to File a Charge of Employment Discrimination. You can also meet with EEOC to discuss your situation and your options. This conversation is confidential. Note: federal employees and job applicants have a different complaint process and different time limits.