Working Women and Sexual Harassment: Legal Evolution into Tomorrow

Abstract: Women form nearly half of national workforce yet almost every woman has a story of sexual harassment, a cultural and generational plague. Anti-sex discrimination law founded in Title VII vows to protect women against sexual harassment; however, nationwide movements the past year like #MeToo and several high-profile cases including that of Harvey Weinstein and Uber attest to today’s prevalence of sexual harassment. This paper examines the history and evolution of sexual harassment legislation and current events to provide tactical recommendations for redressing the rampant issue of workplace inequality. Legally, restricting employment contracts that require private arbitration and non-disclosure agreements would provide legislative support for victims and hold employers accountable for workplace sexual harassment. Culturally, government and employer institutions must couple to counter discrimination by initiating remedies such as mending the wage gap and reevaluating sexual harassment training. Although these changes may not completely mitigate sexual harassment of working women, they provide reasonable means to improve gender inequality and discrimination in the workforce.

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TABLE OF CONTENTS

INTRODUCTION

#MeToo. My first week interning at a Silicon Valley high-tech company, a coworker—on my predominantly male team—asked me out to dinner. Not trying to sound rude or create awkwardness only a few days in, I told him I had plans. A day later, he asked me again. I kindly refused, more directly this time. He asked me once more four days later, this time sending me a reservation confirmation to a nearby restaurant. He asked again, and again. To the point where I could not work out at the company gym in fear of running into him. To the point where I stopped eating at certain places to avoid him. To the point where I felt uncomfortable to even sit at my own desk. Because of my temporary status as an intern, I made the choice to not report him. I chose to protect his relationship with the team over myself. Looking back, I regret that choice. Not just because I felt uncomfortable for twelve weeks, but because other women might fall into my situation with the same man.

The U.S. Equal Employment Opportunity Commission (EEOC) reported 25,288 charges of sex-based harassment in 2016 and 2017 with over half of these cases alleging sexual harassment.[1] A 2018 study likewise found that more than 80% of women and 40% of men have experienced sexual harassment in their lifetime; other studies show that one out of every five adults has faced sexual harassment at work and that 75% of workers experiencing harassment fail to report it.[2] With the current legal system contra sexual harassment and the thousands of yearly cases, why does legislation not provide more competent protection for a majority of American workers—especially women—that continuously suffer from sexual harassment at work? The social history of sexual harassment provides context for Americans to question the very nature of sexual harassment today and the protections and shortcomings of sex discrimination laws. With this historical analysis, contemporary and ongoing investigations continue to set precedents for sexual harassment litigation reform regarding women in the workplace. This paper suggests how federal legislation can more effectively protect employees via contract regulation and how both government and institutions can catalyze cultural changes to curtail the frequency of workplace sexual harassment.

DEFINING SEXUAL HARASSMENT

What constitutes sexual harassment? The EEOC defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature”; furthermore, the EEOC has expanded its definition to include any harassment because of sex, even that not necessarily sexual in nature.[3] Federally, Title VII of the 1964 Civil Rights Act applies to organizations of 15 or more employees and protects those employees from sex discrimination, including sexual harassment.[4] The “unwelcomeness” standard, as deliberated in Henson v. City of Dundee (1982), includes conduct uninvited and unwanted by an individual.[5] Meritor Savings Bank v. Vinson (1986) furthers this claim to include unwelcome sexual advances even in instances of consensual sex.[6] See Meritor Savings Bank v. Vinson.

Case law defines two types of sexual harassment wherein unwelcomeness and harm play key roles: quid pro quo and hostile environment claims. The former encompasses sexual advances bound to an individual’s tangible employment decisions or status, such as a promotion or demotion; the latter, established by Meritor in 1986, addresses the burden of working in an environment where an individual constantly feels under attack because of his or her sex.[7]Additionally, the Burlington Indus. v. Ellerth (1998) decision requires that an employer either knew or should have known of the sexual harassment and that he or she failed to take corrective action.[8]

BEFORE ANITA HILL

Anita Hill’s publicly broadcasted testimony in 1991 against U.S. Supreme Court nominee Clarence Thomas became one of the first most well-known cases of alleged sexual harassment. As Thomas waited for confirmation into the Court by the Senate Judiciary Committee, Hill stepped forward to recount the instances of sexual harassment she endured working under Thomas’ supervision, including inappropriate discussions of pornography and sexual acts.[9] EEOC records document Hill’s legacy with a 50% increase in sexual harassment claims the year following her testimony.[10] A large number of cases remained unreported and another sum unresolved, but Hill sparked a revolution in the perception of sexual harassment in the workplace.

Although American women have struggled with sexual harassment for centuries before Anita Hill’s testimony, the issue became more prominent with the Women’s Liberation Movement in the late 1960s and 1970s that aimed to counter oppression and fight for equality.[11] Catharine MacKinnon’s 1979 Sexual Harassment of Working Women offered the first attempt to comprehend the pervasiveness of workplace sexual harassment and to illuminate sex based discrimination in relation to the law.[12] The EEOC, following MacKinnon’s framework, officially extended sex discrimination and Title VII coverage to include sexual harassment.[13] A decade later, Civil Rights Act of 1991 advanced protections against discrimination for working Americans by granting them the right to a jury trial and the right to sue their employers.[14]

MERITOR SAVINGS BANK V VINSON

The Supreme Court’s first sexual harassment case, Meritor Savings Bank v. Vinson, depicts a prototype sexual harassment case concerning gender norms in the workplace. Forced to leave Meritor Savings Bank, where she had been promoted to assistant branch manager over the course of four years, Mechelle Vinson filed a Title VII claim in 1978 against her supervisor and Meritor Savings.[15] She reported several instances of sexual harassment, such as rape by her supervisor, and claimed that even in instances of consensual intercourse she consented only to protect her job.[16] Legally, voluntary sexual conduct may still classify sexual harassment if the employee indicated unwelcomeness.[17]

Sociologists like Barbara Bergman challenge sexual harassment in cases like Meritor Savings as a gendered expression of power. The sexualized behavior of men towards women in stereotypical male roles, Bergman argues, sprouts from “a desire to wound and embarrass the woman, to demonstrate the men’s contempt for her unfeminine behavior in invading their territory, to show her that they will not accept her as ‘one of the boys,’ and out of a hope that she will be made sufficiently uncomfortable to abandon the job.”[18] Consequently, Meritor Savings’ male-dominated culture propagated the sexualized conduct of male employees and imperiling the non-conforming.

The case reached the Supreme Court in 1986, becoming a landmark case that set four key precedents.[19] Firstly, Title VII does not cover all types of harassment although sexual harassment includes both quid pro quo and hostile work environment claims.[20] Secondly, a claim needs to demonstrate the severity and pervasiveness of the harassment.[21] Thirdly, consensual participation could still violate Title VII protections so long as the plaintiff indicated the unwelcomeness of the sexual advances. This point hence distinguishes consent and unwelcomeness.[22] Lastly, employer liability depends on circumstances; employers neither automatically assume liability nor do they necessarily earn immunity from it.[23]

HARRIS V FORKLIFT SYSTEMS, INC.

Teresa Harris filed a sexual harassment claim against her employer who had used Harris’ gender as a target for insults and unwanted sexual commentary, i.e. stating, “You’re a woman, what do you know.”[24] Harris v. Forklift Systems, Inc. demonstrates first the strict interpretation of Meritor Savings Bank v. Vinson by the district court, which found in a “close case” that Forklift Systems did not subject Harris to a hostile or abusive environment.[25] Overruling the district court’s decision and taking a looser interpretation of Vinson, the Supreme Court found substantive psychological injury unnecessary in qualifying an abusive work environment and, in effect, that Title VII applies to any environment that “would reasonably be perceived, and is perceived, as hostile or abusive.”[26] While the Court held the pervasiveness and severity requirement for sexual harassment suits, the Supreme Court’s decision in favor of Harris resultantly enabled workers to win lawsuits without having to prove psychological damage or an inability to perform their jobs.

PRICE WATERHOUSE V HOPKINS

Price Waterhouse employee Ann Hopkins sued her accounting firm on charges of sex discrimination under Title VII of the Civil Rights Act of 1964.[27] A senior manager at the accounting firm, Hopkins became the only woman amongst the 88 candidates nominated for partnership in 1983 and outperformed every other candidate in that year. Yet, the firm denied her partnership and did not nominate her the following year.[28] Hopkins claimed that her lack of promotion resulted from her non-conformity to gender stereotypes, such as not wearing makeup and using crude “man” language.[29] Price Waterhouse, on the other hand, renounced liability by contending Hopkins could not prove gender-consideration in making the partnership decision. The firm also argued that Title VII did not prohibit discrimination based on gender stereotypes.[30]

The Supreme Court resolved in 1989 that Price Waterhouse could waive liability if it could prove that sex did not play a role in Hopkins’ promotion status.[31] The firm’s failure to do so resulted in its guilty conviction of sex discrimination against Hopkins. Ultimately, Price Waterhouse v. Hopkins expanded sex discrimination to include gender stereotyping, which revolutionized Title VII’s traditional conception of sex. It also created “mixed-motive” framework for proving discrimination in employment decisions that have both legitimate and prejudiced motives. Justice William Brennan, writing for the Court’s 6-3 majority, clarified Congress’ intention of Title VII to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”[32] Hopkins resultantly became the first major ‘glass ceiling’ case by setting legal precedent for penalizing workplace gender stereotyping.[33] Namely, gender stereotyping would now qualify as an actionable offense. Its aftermath continued to support not only female workers but also the male and LGBT communities.[34]

THE NEW MILLENNIUM THROUGH 2018

Women’s mass movement against sexual misconduct skyrocketed in 2016 when the Washington Post released an Access Hollywood video of now-President Donald Trump commenting about women, “You can do anything. Grab ’em by the pussy.”[35] According to NPR’s interview with Washington-based journalist Jodi Enda, “Trump has reinvigorated feminism and the women’s movement in a way that nothing has done for decades.”[36] The number of high-profile sexual harassment scandals has increased since the Trump tape release with more and more women speaking up about their own experiences. Leading up to this social increase in sex discrimination awareness, court cases in the earlier 2000s like Marcia Hocevar v Purdue Frederick Co. and Carla Ingram v. UBS Financial Services shaped this decade’s key legislative procedures by continuously refining the definition of sexual harassment.

HOCEVAR, HARASSMENT, AND RETALIATION

In Marcia Hocevar v Purdue Frederick Co., plaintiff Marcia Hocevar filed Title VII claims of hostile work environment and retaliation.[37] She argued that her supervisor, Timothy Amundsen, subjected her to sexual harassment via constant use of offensive language toward women. In a split decision, the Court of Appeals for the Eighth Circuit affirmed the trial court’s summary judgement by arguing that Hocevar neither sufficiently proved the severity or pervasiveness of the harassment nor “demonstrated that Amundsen’s use of offensive language was unwelcome.”[38] Hocevar’s conduct, in other words, did not indicate unwelcomeness since she herself used the same vulgar language at work around the same people. Interestingly, the court did not consider Amundsen’s poor reviews of Hocevar as retaliation despite her record-breaking performance and outperformance of Amundsen on several occasions. Though poor performance reviews do not always have a sex-based motive, a more careful consideration of Amundsen’s reviews coupled with his frequent derogatory language towards women may have provided more substance to Hocevar’s case.

Hocevar alleged that Purdue had fired her shortly after she filed her sexual harassment claim. Despite the district court’s grant of summary judgement, the Court of Appeals pointed to substantial evidence that retaliation motivated Hocevar’s termination.[39] Over a decade after Hocevar, UBS Financial Services employee Carla Ingram filed for sexual harassment and retaliation against her company under Title VII. She alleged that her supervisor fired her one week after she filed sexual discrimination charge due to his inappropriate behavior, including unwelcome discussion of sexual fantasies and advising oral sex on clients.[40] The Missouri jury in Carla Ingram v. UBS Financial Services found the defendant guilty of harassment and retaliation and awarded Ingram $10.6 million in damages.[41] Hocevar and Ingram’s cases demonstrate the prevalence not just of workplace sexual harassment but of retaliation against those who do speak up against such harassment.

According to the National Center for Biotechnology Information, three-fourths of workers like Hocevar and Ingram face retaliation by employers when addressing sexual harassment during employment.[42] A 2015 survey in Cosmopolitan found that one in three women have been sexually harassed at work.[43] Considering the 66 million employed women in the U.S., this statistic implies that 22 million women have experienced sexual harassment at work and that 75% of those who spoke out faced retaliation.[44] More employer-targeted legislation and a general cultural change in the workplace can help alleviate these issues. See Litigation + Cultural Reform.

THE HARVEY WEINSTEIN EFFECT

In October 2017, the New York Times’ (NYT) released a detailed report on the experiences of 85 women who had come forward with sexual harassment allegations against Hollywood producer Harvey Weinstein.[45] Bill Cosby, Bill O’Reilly, Donald Trump, Woody Allen, David Letterman. Each of these men accumulated several sexual harassment allegations prior to Harvey Weinstein.[46] Yet the Weinstein case, set apart by the scores of A-list celebrities like Angelina Jolie and Gwyneth Paltrow, particularly focused attention of the media and American public.[47]

In the days following the NYT article, actress Alyssa Milano revived activist Tarana Burke’s 2006 #MeToo movement, tweeting, “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”[48] Within 24 hours, Facebook reported over 12 million posts, comments, and reactions to #MeToo.[49] Within another week, CBS noted 1.7 million #MeToo tweets from 85 countries.[50] Most recently, Vox Magazine reported 202 men—celebrities, politicians, and CEOs—accused of sexual misconduct between April 2017 and March 2018.[51] Digital media strategist April Reign told USA Today that “coming out and telling your story first person…has a much more salient impact to other folks who have also experienced sexual assault and violence at the hands of someone in power.”[52]

New York attorney general Eric Schneiderman officially filed a lawsuit against Harvey Weinstein and Weinstein Company Holdings LLC in early February 2018, after four months of investigation.[53] The civil rights suit charged Weinstein with accounts of pervasive sexual harassment and engendering a hostile work environment. In response, Weinstein’s lawyer claimed that allegations against his client “are without merit” and that “while Mr. Weinstein’s behavior was not without fault, there certainly was no criminality.”[54]

Weinstein Co. declared bankruptcy in March 2018 and terminated all nondisclosure agreements between Weinstein and his alleged victims, meaning that more victims and witnesses of Weinstein’s sexual misconduct may come forward.[55] Schneiderman noted to Fortune Magazine that his office will continue to “[ensure] that victims are compensated, employees are protected moving forward, and perpetrators and enablers of abuse are not unjustly enriched.”[56] As one of the biggest sexual harassment cases of the decade, the outcome of this lawsuit could not only set legal precedent against power abuse and sexual misconduct but also reform the culture and awareness of harassment in the workplace. See A Cultural Reconstruction.

UBER AND THE SILICON VALLEY

In February of 2017, former Uber site reliability engineer, Susan Fowler, published a first-hand account of the sexism and harassment she faced working at her company.[57] She detailed her manager’s inappropriate, sexual messages which she reported to Human Resources (HR). Despite screenshots of evidence, “upper management told [her] that he ‘was a high performer’…and they wouldn’t feel comfortable punishing him for what was probably just an innocent mistake on his part.”[58] HR and Uber management’s negligence and impotence to Fowler’s continued experiences with sexism and harassment at the company eventually led her to leave the company and compose the blog post that would shake national awareness for discrimination in tech and, more generally, the workplace.

Between the post’s publication in February and July, Uber took initiatives to combat its noxious image by first hiring former US attorney general Eric Holder to investigate and later firing senior executives and over twenty other employees on accounts of harassment, bullying, and discrimination.[59] In late June, under pressure of investors, CEO Travis Kalanick resigned from the company.[60] While Uber mobilized resources to mend public perception and restore consumer and employee trust, the sequence of events following Fowler’s post signify that the company only acted when necessary. If Uber could so easily, within the span of a few months, investigate and release several employees for harassment and harassment-related conduct, then the suggestion that the tech firm simply neglected its employer duties to ensure a safe environment would not hold unreasonable. Additionally, Uber’s employment contracts require private arbiters rather than juries to handle opened cases and also provide means for the company to bypass class-action lawsuits.[61] The contracts, now with a 30-day opt-out period, thus deter workers wishing to file suit.[62]

The Silicon Valley Boys’ Club has become a cultural term denoting the gender party in male-dominated tech industry. Uber has been only the most recent high-profile tech company to face scrutiny for gender discrimination. In 2015, Ellen Pao sued the mega venture capital firm Kleiner Perkins Caufield & Byers for $16 million in damages with claims of gender discrimination and professional retaliation by her firm.[63] Although the jury ruled in favor of Kleiner Perkins, the case exposed the under representation and unequal treatment of women in tech—a conversation subsequent to former Github engineer’s own detailed experiences to TechCrunch in 2014.[64] A year after Pao’s case, a former Squarespace employee accused the tech company of ‘overt’ racism and sex discrimination.[65] Since 2017, several more professionals at Uber, Tesla, and other Silicon Valley tech companies stepped forward with their own harassment experiences as women in tech, forcing high-profile investors like 500 Startups’ Dave McClure to resign.[66] Tech companies in the Silicon Valley have only in the last decade begun to improve the prevalence of harassment and discrimination in the workplace. Yet women still fall at risk of a perpetuated a misogynistic culture in the world’s fastest growing industry.[67]

LITIGATION + CULTURAL REFORM

Sexual harassment often translates to a gendered expression of power. Promotion of a male employee who had previously and chronically lacked power may result in an abuse of power, particularly inappropriate sexual behavior towards women.[68] Another study in the American Psychological Review notes the higher probability of financially insecure individuals to exhibit harassment conduct; this behavior attains a sexual harassment label more often by those seeking “egalitarian gender relationships.”[69] Evidenced theory suggests that men do view their actions as innocuous communication between genders while women may feel harassed by this “harmless fun.”[70] In other words, socially constructed ideas of gender and masculinity may lead men to develop a subconsciously constricted affinity towards women that results in behavioral ignorance.[71] The theory of power equalization, similarly, argues that gender nonconformity opposed to workplace hierarchy may leave women in authority at higher risk of harassment than women in roles subordinate to men.[72] While these studies and theories pitch rationale for the sexual harassment of women, they fall short in providing legal and cultural adjustments that may remedy the issue. The following two sections propose approaches to fill this gap.

Title VII currently protects employees in organizations of 15 or more employees from pervasive sexual harassment that results in either a hostile work environment or inimical employee decision.[73] Nevertheless, federal law fails to protect all victims, not limited to those in small business of fewer than 15 employees, those who fail to promptly report claims per Title VII’s strict requirement to do so, those who cannot take legal action against individual harassers, and those restricted by pre-employment secrecy agreements. This section details potential solutions to remedy the last case and ensure that Title VII more competently fulfills its anti-harassment intention.

Employers have the liberty to impose binding privacy contracts on employees which often include a requirement to privately handle legal claims, including those of sexual harassment. Companies like Uber have until recently necessitated employees to sign this type of binding agreement pre-employment.[74] Essentially, secrecy contracts hinder an employee not yet acquainted with the company culture to publically raise concern about sexual harassment issues if such complications arise and, oftentimes, to take a claim to court. Enforced private arbitration contracts demand employees to undergo private arbitration subject to employer influence rather than a filing a class-action lawsuit.[75] Usually, employers also prohibit public discussion of cases at and out of the workplace through confidentiality contracts.[76] As a result, if an arbitration does not find the alleged harasser accountable, then an employee cannot take action against the harasser or employer nor amalgamate with colleagues to counter the issue even in the workplace. Curtailing victims’ stories does not only allow harassers to forgo accountability in many cases but also decrease the probability that other victims will press for employer liability.[77] Harvey Weinstein, who used non-disclosure agreements to silence allegations, exemplifies this issue.

Federal law should improve current legislation to avoid these issues rooted in employer’s intention to silence employees. The National Labor Relations Act (NLRA) does outlaw binding agreements that limit employee dialogue on issues like sexual harassment[78] and that constrict employee outreach to federal agencies like the EEOC in cases wherein the individual’s federal rights have been violated.[79] As discussed, however, companies still impose confidentiality agreements that continuously sever employee rights by grounding these contracts in vague language that may discourage employees from conjoining with other employees to raise a concern or filing complaints with federal agencies like the EEOC or National Labor Relations Board.[80] Recent Congressional Acts may remedy the weaknesses in the NLRA.

In 2017, the Congress proposed the Ending Forced Arbitration of Sexual Harassment Act that would eliminate non-disclosure agreements and private arbitrations thereby empowering sexual harassment victims.[81] The Arbitration Fairness Act, also proposed in 2017, would liberate employees from mandatory arbitration in cases including sexual harassment.[82] Additionally, the Sunlight in Workplace Harassment Act introduced in early 2018 would legally require companies to release details of settlements related to sexual harassment.[83] Taken together, these three federal acts would increase employer liability in sexual harassment cases and cover the legal gaps left by the NLRA in employee contracts.

Parallel to recent legislative measures taken by Congress, high-profile companies have begun to address issues of employer-imposed confidentiality. Uber has begun implementing a post-hire 30-day opt out period for binding private arbitration following its sexual harassment controversy in 2017.[84] Other high-tech companies like Microsoft have completely eradicated forced arbitration agreements in cases of sexual harassment and have also advocated for the recently proposed acts contra confidentiality agreements that limit employee civil rights.[85] Uber and Microsoft testify to the growing number of prominent organizations willing to change institutional procedures, but their initiative without adequate legal regulation will probably fail to establish a greater change in the total industry. Therefore, cooperation on both ends assures a cohesive scheme to end sexual harassment and endorse workplace equality.

A CULTURAL RECONSTRUCTION

Law and society inherently coexist, impelling effective legal developments to adjoin cultural growth. The issue of sexual harassment in the workplace ties into a larger problem of nation-wide misogyny while, concurrently sex segregation propagates with the persisting sexual harassment.[86] As a result, societal progressions towards equality necessitate legal impetus. This section describes the states’ role in culture via the wage gap and the institution’s role in enabling a mass cultural change.

The State: Addressing the Wage Gap

The wage gap exemplifies cultural misogyny. Full-time women employees in the 1980s made two-fifths less than men annually, and by 2014, that ratio improved to one-fifth although still demonstrating a very real disparity.[87] MacKinnon theorizes that the eras of female subordination has subconsciously habituated today’s gendered partition between men and women.[88] Aiming for equal pay definitely qualifies as one method to denaturalize this cultural psyche.

However, the tipped minimum wage should serve as the first area of emphasis. In the case that an employee receives $30 or more a month in tips regularly, federal law only requires a $2.13 per hour minimum wage compared to the general $7.25 minimum wage for non-tipped workers.[89] Women account for over 65% of tipped employees nationally and seven percent of the total workforce.[90] Those women who rely on a subminimum wage, as in 43 of 50 states, lay at especial risk of sexual harassment as they remain financially dependent on customer satisfaction and interaction. States that have not yet enacted equal minimum wage policies have reported twice as many occurrences of sexual harassment than states that have.[91] The higher rate of sexual harassment also accompanies a higher rate of sexually-inclined language in the workplace.[92]

While the issue of the wage gap itself would still prevail, the legal expulsion of tipped minimum wages would reinforce gender equality in one of the biggest industries nationwide: the restaurant industry. Economically isolating women from a dependence on tips can allow them to more freely avert sexual harassment. In turn, women’s pushback could engender a firmer cultural boundary that would leave women less vulnerable to sexual harassment, as evidenced by the statistics above. Although the state could and should revisit more policies that could beget a cultural turn, advancing in small steps may provide a more efficient means to efficiently equalize sexes legally and socially in the workplace.

The Institution: Adapting Training Policies

Perennial sexual harassment prevention ultimately requires changes in attitude and behavior. On the state level, twenty-seven states legally require sexual harassment training in the public sector and three states require these trainings in the private sector as well.[93] While federal law currently does not obligate a written anti-sexual harassment policy that prohibits harassment and retaliation nor mandate sexual harassment trainings, the EEOC recommends that companies provide employees with an effective written policy to educate employees and provide tangible inter-organizational regulations and procedures.[94] A 2008 study on organizational responses to workplace harassment found that written policies did not actually prevent the probability of harassment unless supplemented by more comprehensive prevention endeavors.[95] Nearly a decade following, the Association for Talent Development (ATD) published survey results of 955 human resource professionals relaying that only 71 percent of organizations conducted sexual harassment training even though approximately 90 percent possessed written anti-harassment policies.[96] EEOC data additionally details a rise in federal harassment complaints since 2010 reinforcing the agency’s 2016 report that trainings fail to prevent harassment by focusing on “simply avoiding legal liability.”[97] This report thereby questions the training program effectiveness in the 71 percent of organizations that claim to conduct them.

The fulcrum of assembling positive training changes dovetails the circumstantial climate of those trainings. Essentially, sexual harassment training proves useless unless an organization fosters an authentic, moral work environment.[98] Employees who identify their organization’s efforts to combating sexual harassment as genuine have a greater proclivity to behavioral and attitudinal changes.[99] Other research supports this idea by advocating for the creation of a liberal climate and the development of contextual reasoning to reduce accusations against victim.[100] Accordingly, companies should not only consider altering the nature of trainings but the nature of the institution itself to better engage employees and in turn communicate real results.

Training should additionally combat bystander apathy, referring to the “perceived diffusion” of an individual’s responsibility to intervene in situations like sexual harassment in the presence of others.[101] Firstly, bystander education would both progress sexual harassment comprehension by enabling individuals to more adequately identify instances of sexual harassment that behoove intervention and differentiating between roles of the victim, the perpetrator, and the witness.[102] Secondly, bystander training better equips individuals with the necessary skills to intervene, thereupon heightening the probability that a bystander undertakes an active role in impeding sexual harassment.[103] Finally, incorporating bystanders into training catalyzes a greater community change by bequeathing ethical responsibility onto employees and mobilizing all employees to engage in anti-harassment attitudes and behavior.[104] The EEOC began addressing witness’ roles in combating sexual harassment in its extensive 2017 anti-harassment training program that coaches intervention mechanisms for bystanders.[105]

In brief, organizations should prioritize enhancing mere written policies with effective training programs, concentrating on behavioral changes rather than skirting legal liability, to emphatically rehabilitate the rife culture of sexual harassment. Future studies should investigate the potential impact of anonymous environment surveys in diagnosing sexual harassment issues pre-escalation. Moreover, several articles and research papers study how to report instances of sexual harassment and the handling of those cases by employers. Yet, a dearth of data inhibits employees from understanding the process that their sexual harassment cases undergo. Sexual harassment trainings should thence detail not only how to report claims but also how the organization will handle those claims concretely.

CONCLUSION

Legal evolution portrays how previously discriminated groups like women increasingly seek equal access to the workplace, including the right to a harassment-free environment. With men increasingly held accountable for their actions, the practice of sexual harassment and prevention thereof continues to evolve alongside the emergence of mass movements nationwide like #MeToo. The regulation of sexual harassment through legislative and institutional reforms progressively changes the nature of workplace interactions and the perceived meaning of actions and behaviors at work. Legally, federal legislation should restrict employer-imposed confidentiality contracts and hold perpetrators accountable to a greater degree. Culturally, legislation can lessen sexual harassment chances by targeting gendered issues like the wage gap and by federally eradicating the tipped minimum wage. Maturing the workplace climate demands efforts from governmental agencies and individual institutions which must both necessitate and reevaluate current sexual harassment trainings within a broader context of workplace ambience.

Although both law and institutions currently shoulder substantial shortcomings that they must address to successfully combat workplace sexual harassment, we—the general public—must also use public discussion to pressure government and employer institutions for productive progress. Especially at the workplace, individuals can help prevent situations before they arise by becoming active bystanders, correcting harassers even in the absence of women, speaking with female colleagues, requesting employee trainings, and continuing the conversation.

FOOTNOTES

[1] U.S. Equal Employment Opportunity Commission. “Charges Alleging Sex-Based Harassment (Charges Filed with EEOC) FY 2010 – FY 2017.” EEOC. 2017.

[2] Stop Street Harassment. “2018 Study on Sexual Harassment and Assault.” Stop Street Harassment. February 2018.; Lee, Hailey. “One-fifth of American Adults Have Experienced Sexual Harassment at Work, CNBC Survey Says.” CNBC. December 19, 2017.; Chai R., Feldblum and Victoria A. Lipnic. “Select Task Force on the Study of Harassment in the Workplace.” U.S. Equal Employment Opportunity Commission. June 2016.

[3] U.S. Equal Employment Opportunity Commission. “Sexual Harassment.” EEOC.

[4] Civil Rights Act of 1964. Public Law 88-352, Title VII, Sec. 703, 78. U.S. Statutes at Large. July 2, 1964.

[5] Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

[6] Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986).

[7] United States. U.S. Equal Employment Opportunity Commission. Enforcement Guidance. 1990. June 28, 2010. Accessed March 24, 2018.

[8] Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).

[9] Rosenwald, Michael S. “Re-watching Joe Biden’s Disastrous Anita Hill Hearing: A Sexual Harassment Inquisition.” The Washington Post. December 14, 2017.

[10] U.S. Equal Employment Opportunity Commission. “Sexual Harassment Charges.” EEOC.

[11] White, Deborah Gray. Ar’n’t I a Woman?: Female Slaves in the Plantation South. New York, NY: W. W. Norton &, 1999. This text describes the sexual exploitation of slave women in the plantation South during the 18th and 19th centuries; Berkeley, Kathleen C. The Women’s Liberation Movement in America. Greenwood Press, 1999.

Berkeley analyzes the Women’s Liberation Movement in the 1960s and 70s and the resulting developments of the feminist agenda on American society.

[12] MacKinnon, Catharine. Sexual Harassment of Working Women. Yale University, 1979.

[13] U.S. Equal Employment Opportunity Commission. “Enforcement Efforts in the 1980s.” EEOC.

[14] Civil Rights Act of 1991, Public Law 102-166. U.S. Statutes at Large. January 3, 1991.

[15] Meritor Savings Bank, FSB v. Vinson.

[16] Juliano, Ann C. “Did She Ask for It?: The Unwelcome Requirement in Sexual Harassment Cases.” Cornell Law Review 77, no. 6 (September 6, 1992): 1558-1592. Accessed March 25, 2018.

[17] Meritor Savings Bank, FSB v. Vinson.

[18] Barbara R. Bergman, The Economic Emergence of Women, 1986, 70.

[19] Juliano, 1572.

[20] Ibid., 1573.

[21] Ibid.

[22] Ibid.

[23] Meritor Savings Bank, FSB v. Vinson.

[24] Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

[25] Ibid.

[26] Ibid.

[27] Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[28] Ibid.

[29] Ibid.

[30] Ibid

[31] Ibid.

[32] Ibid.

[33] The “glass ceiling” refers to the societal stagnation of women and minority men due to prejudice.

[34] See Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998), Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), Schwenck v. Hartford, 204 F.3d 1187, 1201-02 (9th Cir. 2000).

[35] Fahrenthold, David A. “Trump Recorded Having Extremely Lewd Conversation About Women in 2005.” The Washington Post. October 08, 2016.

[36] Blair, Elizabeth. “Women Are Speaking Up About Harassment And Abuse, But Why Now?” NPR. October 27, 2017.

[37] Marcia Hocevar v Purdue Frederick Co., 223 F.3d 721 (8th Cir. 2000).

[38] Ibid.

[39] Marcia Hocevar v Purdue Frederick Co.

[40] UBS Financial Services v. Ingraham, No. 09-2502-KHV (D. Kan. 2009).

[41] Ibid.

[42] Cortina, Lilia M., and Vicki J. Magley. “Raising Voice, Risking Retaliation: Events following Interpersonal Mistreatment in the Workplace.” Journal of Occupational Health Psychology, no. 4 (October 2003): 247-65.

[43] Ruiz, Michelle. “Survey: 1 in 3 Women Has Been Sexually Harassed at Work.” Cosmopolitan. October 07, 2017.

[44] Women’s Bureau. “Women in the Labor Force in 2010.” 2010.

[45] Kantor, Jodi, and Megan Twohey. “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades.” The New York Times. October 05, 2017.

[46] “Bill Cosby: A 50-year Chronicle of Accusations and Accomplishments.” Los Angeles Times. June 17, 2017.; Steel, Emily, and Michael S. Schmidt. “Bill O’Reilly Settled New Harassment Claim, Then Fox Renewed His Contract.” The New York Times. October 21, 2017.; Graves, Lucia. “The Sexual Misconduct Allegations against Donald Trump.” The Guardian. November 19, 2017.; Savitsky, Sasha. “Dylan Farrow Recounts Alleged 1992 Woody Allen Sexual Assault.” Fox News. January 18, 2018.; James, Michael S., and Lindsay Goldwert. “David Letterman Reveals Extortion Plot and Confesses to Sex With Staffers.” ABC News. October 01, 2009.

[47] Kantor, Jodi, and Rachel Abrams. “Gwyneth Paltrow, Angelina Jolie and Others Say Weinstein Harassed Them.” The New York Times. October 10, 2017.

[48] Milano, Alyssa. “If You’ve Been Sexually Harassed.” Twitter. October 15, 2017.

[49] CBS. “More than 12M “Me Too” Facebook P.” CBS News. October 17, 2017.

[50] Park, Andrea. “#MeToo Reaches 85 Countries With 1.7M Tweets.” CBS. October 24, 2017.

[51] North, Anna. “Sexual Misconduct Assault Allegations List.” Vox. December 22, 2017.

[52] Lawler, Kelly. “Why We All Care So Much About Harvey Weinstein.” USA Today. October 31, 2017.

[53] “New York v. The Weinstein Company.” The Washington Post. February 2, 2018.

[54] Fleming, Mike, Jr. “Harvey Weinstein Responds To NY Attorney General’s Lawsuit: ‘No Criminality.’” Deadline. February 12, 2018.

[55] Gonzalez, Sandra, and Brian Stelter Stelter. “Weinstein Company Files for Bankruptcy and Says Victims Can Speak out.” CNN. March 20, 2018.

[56] Meyer, David. “The Weinstein Company’s Bankruptcy Will Immediately Nullify Accusers’ Non-Disclosure Agreements.” Fortune. March 20, 2018.

[57] Susan Fowler, Susan J. “Reflecting on One Very, Very Strange Year at Uber.” Susan J Fowler. February 19, 2017.

[58] Ibid.

[59] Timberg, Craig, and Elizabeth Dwoskin. “Uber Fires 20 Employees as Part of Harassment Investigation.” The Washington Post. June 06, 2017.

[60] Isaac, Mike. “Uber Founder Travis Kalanick Resigns as C.E.O.” The New York Times. June 21, 2017.

[61] Tiku, Nitasha. “Why Aren’t More Employees Suing Uber?” Wired. July 25, 2017.

[62] Ibid.

[63] Bowles, Nellie, and Liz Gannes. “Ellen Pao Suffers Complete Loss in Historic Gender Discrimination Suit.” Recode. March 27, 2015.

[64] Wilhelm, Alex, and Alexia Tsotsis. “Julie Ann Horvath Describes Sexism And Intimidation Behind Her GitHub Exit.” TechCrunch. March 18, 2014.

[65] Dickey, Megan Rose. “Former Squarespace Employee Alleges ‘Overt’ Racism.” TechCrunch. March 17, 2016.

[66] Benner, Katie. “Women in Tech Speak Frankly on Culture of Harassment.” The New York Times. June 30, 2017.

[67] Westman, Shelley. “Why Women Are Missing out on Tech’s Fastest-growing Field.” Fortune. September 22, 2015.

[68] Williams, Melissa J., Deborah H. Gruenfeld, and Lucia E. Guillory. “Sexual Aggression When Power Is New: Effects of Acute High Power on Chronically Low-power Individuals.” Journal of Personality and Social Psychology 112, no. 2 (February 2017): 201-23.

[69] Uggen, Christopher, and Amy Blackstone. “Sexual Harassment as a Gendered Expression of Power.” American Sociological Review 69, no. 1 (February 1, 2004): 64-92.

[70] Quinn, Beth A. “Sexual Harassment and Masculinity.” Sociologists for Women in Society 16, no. 3 (June 1, 2002): 386-402.

[71] Ibid.

[72] Mclaughlin, Heather, Christopher Uggen, and Amy Blackstone. “Sexual Harassment, Workplace Authority, and the Paradox of Power.” American Sociological Review 77, no. 4 (July 02, 2012): 625-47.

[73] Civil Rights Act of 1964.

[74] Tiku.

[75] Colvin, Alexander J.S. “The Growing Use of Mandatory Arbitration: Access to the Courts Is Now Barred for More than 60 Million American Workers.” Economic Policy Institute. September 27, 2017.

[76] Hemel, Daniel. “How Nondisclosure Agreements Protect Sexual Predators.” Vox. October 09, 2017.

[77] Ahrens, Courtney E. “Being Silenced: The Impact of Negative Social Reactions on the Disclosure of Rape.” American Journal of Community Psychology 38, no. 3-4 (2006): 31-34.

[78] National Labor Relations Board. “Jurisdictional Standards.” National Labor Relations Board.

[79] EEOC v. Astra USA, Inc., 929 F. Supp. 512 (1996).

[80] Office of Public Affairs. “Board Finds That Certain Mandatory Arbitration Agreements Violate Federal Labor Law.” National Labor Relations Board. January 6, 2012.; Silver-Greenberg, Jessica, and Noam Scheiber. “Court Rules Companies Cannot Impose Illegal Arbitration Clauses.” The New York Times. May 27, 2016.

[81] U.S. Congress, House, Ending Forced Arbitration of Sexual Harassment Act of 2017, HR 4734, 115th Cong. Introduced in House January 22, 2017.

[82]  U.S. Congress, House, Arbitration Fairness Act of 2017, HR 1374, 115th Cong. Introduced in House March 7, 2017.

[83] U.S. Congress, House, Sunlight in Workplace Harassment Act, HR 5028, 115th Cong. Introduced in House February 14, 2018.

[84] Tiku.

[85] Wingfield, Nick, and Jessica Silver-greenberg. “Microsoft Moves to End Secrecy in Sexual Harassment Claims.” The New York Times. December 19, 2017.

[86] Lach, Denise H., and Patricia A. Gwartney-Gibbs. “Sociological Perspectives on Sexual Harassment and Workplace Dispute Resolution.” Journal of Vocational Behavior 42, no. 1 (1993): 102-15.

[87] Blau, Francine D., and Lawrence M. Kahn. “The Gender Wage Gap: Extent, Trends, and Explanations.” Journal of Economic Literature 55, no. 3 (2017): 789-865.

[88] MacKinnon, Catharine.

[89] United States Department of Labor. “Tips.” Department of Labor. December 07, 2017.

[90] National Women’s Law Center. “Women and the Tipped Minimum Wage, State by State.” National Women’s Law Center. July 20, 2017.

[91] Ibid.

[92] Ibid.

[93] Herba, Agnes. “State-Specific Sexual Harassment Training Requirements.” OpenSesame. January 5, 2018.

[94] U.S. Equal Employment Opportunity Commission. “Tips for Small Businesses.” EEOC. Accessed April 24, 2018.

[95] Salin, Denise. “Organisational Responses to Workplace Harassment.” Personnel Review 38, no. 1 (2008): 26-44.

[96] Wherry, Heather. “71 Percent of Organizations Offer Sexual Harassment Prevention Training.” Main. March 26, 2018.

[97] U.S. Equal Employment Opportunity Commission. “Select Task Force on the Study of Harassment in the Workplace.” EEOC. June 2016.

[98] Cheung, Ho Kwan, Caren B. Goldberg, Eden B. King, and Vicki J. Magley. “Are They True to the Cause? Beliefs About Organizational and Unit Commitment to Sexual Harassment Awareness Training.” Group & Organization Management, September 04, 2017, 8-10.

[99] Ibid.

[100] Bond, Meg A. “Prevention and the Ecology of Sexual Harassment:.” Prevention in Human Services 12, no. 2 (October 12, 1995): 165-67.

[101] Psychology Today. “Bystander Effect.” Psychology Today.

[102] Katz, Jackson. Mentors in Violence Prevention (MVP) Trainer’s Guide. Northeastern University’s Center for the Study of Sport in Society. Boston, 1994.

[103] Huston, Ted L., Mary Ruggiero, Ross Conner, and Gilbert Geis. “Bystander Intervention Into Crime: A Study Based on Naturally-Occurring Episodes.” Social Psychology Quarterly 44, no. 1 (March 1981): 14-23.

[104] Bond, 164; Katz.

[105] U.S. Equal Employment Opportunity Commission. “EEOC Launches New Training Program On Respectful Workplaces.” EEOC.

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