By: Andtoinette Mederos, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

Sexual harassment and sexual assault seem all too common in today’s work environment. According to a recent poll conducted by Edison Research titled Sexual Harassment in the workplace #metoo, men, women, and the gig economy, 27 percent of women have experienced sexual harassment within the workplace. Additionally, the survey revealed that “[f]ifty-five percent of those who have experienced harassment agreed that the harassment hurt their overall career.” Interestingly enough, the stigma and diminished reputation that comes with filing a sexual harassment claim may be one of the underlying reasons why 90% of employees who do experience sexual harassment in the workplace never file a formal complaint and 75% never complain to their employers either.

In October of 2017, the #MeToo movement inspired many to come forward and share their experiences with sexual harassment or sexual assault in the workplace in order to create awareness and empower women. While there has been criticism from many stemming from the emphasis on targeting individual persons, who have committed acts of sexual harassment or assault. instead of implementing and creating policies to reduce these instances, the movement has allowed victims a platform to speak publicly about the issue. From the entertainment industry to government officials, victims have identified previous or current employers who have sexually harassed or assaulted them. This has caused a wave of repercussion for these employers in the form of damaged reputation and ensuing legal action. Most significantly, Harvey Weinstein came under heavy fire when 39 women, both prominent Hollywood actresses, and employees alike, accused him of sexual misconduct within the workplace. Mr. Weinstein’s company has since filed for Chapter 11 bankruptcy and he has turned himself into the police, pending further legal action.

Sexual harassment in the workplace has also been heavily scrutinized within the legal field. The most prominent case of this occurred in 1991 when Anita Hill testified against the then Supreme CourtJustice nominee, Clarence Thomas. In a highly publicized confirmation hearing before the Senate Judiciary Committee, Anita Hill spoke about the sexual harassment she faced while Justice Thomas was her supervisor at the U.S.Department of Education and the Equal Employment Opportunity Commission. In light of the recent sexual assault accusations about the latest Supreme Court Justice nominee, Brett Kavanaugh, Ms. Hill writes “Today, the public expects better from our government than we got in 1991 when our representatives performed in ways that gave employers permission to mishandle workplace harassment complaints.”   

The Courts have not been a source of aids for victims of workplace harassment either. According to the American Bar Association (ABA) Journal, “[a] Federal Judicial Center analysis found that when an employer made a motion for summary judgment in employment discrimination cases, the motion was granted in full or in part in more than 70 percent of the cases.” Many sexual harassment suits are also dismissed and employment lawyers are not willing to represent a plaintiff unless there are multiple witnesses. Similarly, many employers mandate arbitration and most attorneys aren’t interested in the reward amount given.

In light of these circumstances, educating employers and developing solutions to combat workplace harassment has become extremely imperative. The first step however, should come from self-awareness of one’sown conduct. Employment lawyers speaking to the ABA Journal have stated that “[t]heawareness that one’s behavior may make colleagues uncomfortable, along with the willingness to stop the conduct in question without resentment, is what’s needed to decrease sexual harassment at work.” The ABA has taken steps to address workplace harassment issues by adopting resolutions that apply to everyone within the workplace. These resolutions aim to “‘prohibit, prevent and promptly redress harassment and retaliation based on sex, gender, gender identity, sexual orientation and the intersectionality of sex with race and/or ethnicity.’” Most importantly, they provide alternative ways in which victims can report violations that do not involve the accused party, as well as ways which prohibit retaliation to the victim and any witnesses. Employers have also added training programs that target the prevention and elimination of sexual harassment and abuse within the workplace. Nevertheless, employers need to emphasize and allow free discussion where employees are able to discuss these issues.

The #MeToo movement has allowed those who felt they had no voice to speak out and inspire others. The route to workplace equality and safety holds an important role in our everyday lives. While victims of workplace harassment and activists have been effecting change all over the world, further steps need to be taken. As Anita Hill states, “There is no way to redo 1991, but there are ways to do better….‘not getting it’ isn’t an option for our elected representatives. In 2018, [we] must get it right.”