CHAPTER 24

What to Do If You’ve Been Sexually Harassed

by Joanna L. Grossman and Deborah L. Rhode

Sexual harassment scandals at major companies such as Uber and Fox News have been a reminder not only that sexual harassment is still a regrettably routine feature of working life but also that even some of the most powerful perpetrators can, eventually, be held accountable.

Despite more than four decades of legal sanctions and workplace training, harassing conduct remains persistent and pervasive. We have written elsewhere about how the law and workplace need to change to better address the problem. Our focus here is on what women, who reportedly make up 90% of harassment targets, can do when they confront it personally and what strategies are most likely to be effective.

The most critical questions for employees who have been harassed at work are, first, what response do they want? And second, what are they prepared to risk to get it?

For most women, the answers are likely to depend on the seriousness of the harassment and the costs of complaining. Is the conduct ongoing, a threat to personal safety or well-being, or likely to have major job or career consequences? How easy would it be to avoid the harassment? For example, in a lawsuit against UC Berkeley School of Law, the dean’s assistant complained that her boss had repeatedly hugged and kissed her. The conduct occurred almost daily, and the assistant had no way to remove herself from the situation without quitting. Some of the allegations against Fox News chair Roger Ailes involved women who were not under his ongoing supervision but who wanted jobs that he could deny them if they didn’t submit to his sexual demands. As he allegedly told one of them, “You know if you want to play with the big boys, you have to lay with the big boys.” These women paid a significant career price for refusing, but at least they had the opportunity to avoid the harassment by staying in their current positions. By contrast, the dean’s assistant had little choice but to complain if she wanted to hold on to her position and stop the harassment.

Another key consideration for women deciding how to respond to harassment is how much legal or professional leverage they have. This depends both on whether they are likely to prevail in a lawsuit and whether their public disclosures can cause significant reputational damage.

To evaluate their legal claims, women need to understand certain basic facts about the law governing sexual harassment. The United States Supreme Court has held that Title VII of the Civil Rights Act of 1964, which bans employment discrimination on the basis of sex (as well as race, color, ethnicity, national origin, and religion), includes a ban on sexual harassment and provides that employers can be held liable for unlawful harassment in certain circumstances. Most state laws extend similar protections. Two Supreme Court cases from 1998, Faragher v. Boca Raton and Burlington Industries, Inc. v. Ellerth, established a framework for accountability based on the nature of the harassment and the position of the harasser. Employers are strictly liable for harassment by a supervisor that results in a tangible employment action. An example would be a manager who fires a subordinate for refusing to sleep with him. For harassment that does not result in such a tangible action, employers can avoid liability by establishing an affirmative defense. In effect, they must show that they took reasonable measures to prevent and correct harassment and that the victim failed to take advantage of opportunities to avoid harm. In theory, the burden is on the employer to show why liability is not appropriate, rather than the converse. In practice, however, courts have time and again granted employers the benefit of the affirmative defense without ever inquiring whether the measures they took to prevent or respond to harassment were effective. That may change in response to the shift in cultural norms accompanying the #MeToo movement. But women should be aware that traditionally, the law has too often given employers a safe harbor.

Women who are considering making a formal complaint should be realistic about the financial, psychological, and reputational cost of pursuing it. Defendants typically have deeper pockets than victims, and the price of hiring a lawyer is often prohibitive. To be sure, attorneys specializing in harassment cases are often willing to work on a contingent fee, which means that their compensation comes only if they win a judgment for the complainant. But unless damages and the likelihood of recovery are substantial, few lawyers will want to take the case. Employment discrimination cases have the lowest win rate for plaintiffs of any civil cause of action. And in sexual harassment cases it is the complainant as much as the harasser who is on trial. Consider the experience of Gretchen Carlson, the first woman to go public with a claim against Roger Ailes. The public relations department of Fox initially sought to shoot the messenger. It portrayed Carlson as a disgruntled employee with an ax to grind, released affectionate emails from Carlson to Ailes, and recruited other women at Fox News to come to his defense.

While this may sound daunting, there are steps that targets of harassment can take to anticipate and mitigate these kinds of challenges.

First, employees who experience harassment should make a record. They should keep copies of incriminating emails and voicemails, and they should document their own efforts to stop the abuse. If their organization has confidential reporting channels, they should use them and, if they fear retaliation, consider the possibility of making an anonymous complaint and collecting any evidence of retaliation. They should also tell trusted friends and family members about any harassing or retaliatory conduct so those individuals could serve as witnesses in a subsequent investigation or legal proceeding.

Even if the employee is convinced that reporting the incident will do nothing, she should still report it. Courts typically ask whether the victim filed an internal complaint, and if she didn’t, why not. If she waited to complain, they ask why and for how long and are unwilling to accept the most obvious and compelling reasons. A delay of even a few days can be deemed “unreasonable,” and fears of retaliation are frequently dismissed as too vague and “generalized” to justify the failure to complain. Courts also often require specific evidence of retaliation; a generalized fear of retaliation is not enough for victims to get a jury to agree with their claims. Fears of retaliation are typically well founded: Employees who file complaints of discrimination experience retaliation at rates as high as 50% to 60%.¹ Targets of harassment can bolster their claims by documenting specific instances of retaliatory behavior. For example, in February 2017 Susan Fowler published a blog post entitled, “Reflecting on One Very, Very Strange Year at Uber,” on her website, detailing her unsuccessful efforts to halt harassment at Uber. After repeatedly complaining about an instance of discrimination, she was threatened with termination if she filed another report. Eventually Fowler quit, but her blog recounting the experience went viral, and Uber CEO Travis Kalanick launched an “urgent investigation” into her allegations. The company subsequently fired more than 20 employees. (Kalanick later stepped down as CEO, in part because of the company’s culture and his influence on it.)

This example underscores the value of going public with or without the threat of litigation. Negative publicity can sometimes be more effective in pressuring companies to take harassment seriously than reliance on formal complaint channels.

Finally, as the Uber and Fox News cases both suggest, women can work collectively to pressure employers. What enabled Carlson to prevail was the steady trickle of other victims ready to tell their stories. Fowler likewise discovered other women at Uber who had been harassed. Safety in numbers is often what empowers women to come forward. And numbers are often what forces employers to settle and take preventive action, as is clear from the ouster of Ailes, Fox News host Bill O’Reilly, and Uber employees.

After decades of research, we know quite a bit about how victims respond to harassment and why the law has so often failed to provide appropriate remedies. They wait to see whether the behavior will stop on its own, or they keep silent because they fear that reporting will be futile or that the harasser will retaliate. Rather than filing internal or external complaints, harassment targets tend to resort to informal and nonconfrontational remedies. They vent, cope, laugh it off, treat it as some kind of less-threatening misunderstanding, or simply try to get on with their jobs (and lives). They may blame themselves, pretend it isn’t happening, or fall into self-destructive behaviors like developing eating disorders or engaging in excessive drinking. Many women choose costly consequences—such as quitting their jobs—to avoid dealing with harassment directly or have high levels of absenteeism that lead to termination or other adverse results.

We hope that offering concrete strategies will help more women fight back. Documenting harassment and retaliation, working collectively with other women, and publicizing abuse can all be effective. Increasing resources are available for women who experience abuse, including the Women’s Law Center’s matching system that links complainants with lawyers willing to take cases for free or for reduced fees.

Reforms in workplace practices are also necessary. All organizations have a responsibility to provide not just formal policies but also effective complaint channels, protections against retaliation, and efforts to monitor their progress in preventing and remedying harassment. Studies show that women respond more assertively to misconduct when employers take proactive efforts to deter harassment and protect complainants.

Those who care about equal employment opportunity can also support organizations that are working for reforms in laws governing sexual harassment and representing women who cannot afford legal assistance. And those who suffer abuse can tell their stories, through both traditional outlets and social media. The ouster of Roger Ailes and Bill O’Reilly and the shake-up at Uber make it clear that women’s voices can matter. But the fact that achieving those results took a quarter century of complaints at Fox and the unrelenting glare of public scrutiny at Uber reminds us how much progress remains to be made.

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Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law. Her most recent book is Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace. She is a regular columnist for Justia’s “Verdict.” Deborah L. Rhode is the Ernest W. McFarland Professor of Law and the director of the Center on the Legal Profession at Stanford University. Her most recent book on gender is Women and Leadership: The State of Play and Strategies for Change.

NOTE

1. Deborah L. Brake and Joanna L. Grossman, “The Failure of Title VII as a Rights-Claiming System,” North Carolina Law Review 86 (2008): 859–938.

Adapted from “Understanding Your Legal Options If You’ve Been Sexually Harassed” on hbr.org, June 22, 2017 (product #H03QA6)