A MANAGEMENT PERSPECTIVE

Steven H. Schwartz

Prior to the explosion of sexual harassment claims in the “Me Too” era, beginning around 2017, sexual harassment in the workplace appeared to many (at least male) managers and attorneys as a problem relatively under control.  Title VII of the Civil Rights Act of 1964 and Michigan’s Elliott-Larsen Civil Rights Act had significant legal remedies for victims of sexual harassment.  Thousands of lawsuits were filed.  At least as many Charges of Discrimination were filed with the Equal Employment Opportunity Commission and Michigan Department of Civil Rights.  The lawsuits and Charges of Discrimination led to millions of dollars of damage awards and settlements to victims of sexual harassment.  Professor Anita Hill’s testimony during Senate hearings on the nomination of Clarence Thomas to serve on the Supreme Court gripped the nation and stimulated a national debate on what was acceptable behavior towards women in the workplace.  As a result, sexual harassment lawsuits spiked after these Senate hearings.

With the advent of comprehensive federal regulations by the EEOC and the U. S. Supreme Court’s decisions in Farragher v Boca Raton and Burlington v Ellerth (1998), employer policies prohibiting sexual harassment and mandatory sexual harassment training in the workplace became commonplace.  Women started to advance in key management roles, particularly in law and human resources.

Sexual harassment complaints in the 1970’s and 1980’s frequently involved hostile work environment claims based, at least in part, on the presence of pictures and calendars of women in provocative clothing or no clothing at all.  In these early years after Title VII, sexual harassment complaints also frequently involved complaints of demeaning comments, like “girl”, “sweetie” or “honey”.  If there has been any success in eliminating some forms of sexual harassment, these two types of sexual harassment are far less prevalent than in the 1970’s and 1980’s.

Since the 1970’s, there has been far more serious complaints of quid pro quo or hostile work environment, involving physical contact and demands for sexual favors.  While these types of complaints never went fully away, the combination of laws, employer policies and mandatory sexual harassment training, appeared to significantly reduce the problem.

Or so we (male managers and employer lawyers) thought.  What the “Me Too” movement exposed was systemic, unchecked sexual harassment in the entertainment industry and the national political level.  The Larry Nasser and the Ohio State scandals exposed major universities’ and law enforcement’s initial inability to check egregious, criminal behavior.  Like the Anita Hill – Clarence Thomas Senate hearings, the “Me Too” movement stimulated complaints of sexual harassment.  Objective statistical data demonstrates this type of complaint is still prevalent in the workplace.  The EEOC reported on its website that for fiscal year 2018:

• Its filing of sexual harassment lawsuits increased by more than 50%;
• Charges of Discrimination filed with the EEOC, alleging sexual harassment, increased 12% over the prior fiscal year;
• The EEOC recovered approximately $23.5 million for sexual harassment victims than the prior fiscal year.

Why 55 years after the adoption of Title VII is this still a problem in the workplace? 

There seem to be two basic reasons for the continuation of sexual harassment in the workplace.  First, human behavior does not change.  Sibling rivalry has continued since Cain and Abel.  Race discrimination in the workplace and in American society in general, persists, although perhaps in more subtle ways.  Anti-Semitism and religious discrimination are still pervasive, and, at least against Muslims, is frequently displayed in overt ways.  We still read articles about teachers having sex with teenage students and public employees taking bribes.  These improper behaviors are prohibited by numerous laws and employer policies, but they still persist.

The second reason, exposed by the “Me Too” movement, was the reluctance of many women to complain about sexual harassment or report that it was affecting co-workers.  The remedial laws, employer policies and mandatory training failed to get virtually all victims or witnesses to complain.  How do employers then convince victims and witnesses to come forward and trust that appropriate action will be taken and that they will not be subject to retaliatory action for complaining?

The long-term answer lies not in a change of laws, the verbiage of policies or the frequency of mandatory training, but in a change in American culture.  This change must be two-fold:  universal recognition that sexual harassment in the workplace is unacceptable and effective strategies must be developed for victims to promptly report their claims.  Until the latter is achieved, sexual harassment in the workplace will not be significantly reduced.  Management is responsible for responding to sexual harassment complaints.  Management also needs to develop effective strategies to get victims to step forward so that appropriate remedial action can be taken.

This is not “blame the victim”.  But if management does not know there is a problem and cannot develop evidence to establish improper conduct occurred, it cannot effectively address this problem.  Since there is no magic answer, the following are practical suggestions which might help:

1. Managers should not assume that the problem has been solved or there is only a small likelihood that sexual harassment is occurring.
2. Always include women on the list of managers that victims can complain to, since many women are more comfortable discussing their problem of sexual harassment with a woman.
3. Have informal discussions with small groups of employees, covering different levels of employees, requesting suggestions on how to encourage victims to come forward.
4. Engage independent, experienced investigators to review complaints of sexual harassment.
5. Recognize that as women break into traditionally male-dominated “macho” occupations (law enforcement, firefighting, public works and construction), the risk is greater that employees will be afraid to make complaints.
6. For public sector organizations, have workshops for elected officials on their personal liability if they engage in sexual harassment and how to respond if they receive a complaint.
7. Adopt policies and work rules discouraging dating relationships between coworkers, particularly supervisors and coworkers.
8. Prohibit alcohol at all employer-sponsored events.
9. Expand training to cover new hires and facilities physically located away from management’s offices

In conclusion, managers should treat sexual harassment as a potential, on-going problem and never assume the issue has been resolved.