In 2014, when Ursula Mead started InHerSight, an online website designed to allow women to rate employers – essentially a Glassdoor for working women – little did she know that her website would play such an important role in forwarding the conversation about sexual harassment in the workplace.
Today, as Mead says, women are coming forward in droves to complain about workplace conditions in the Triangle and beyond.
“Sexual harassment is a reality at all three of the stores I’ve worked at. It has never been properly dealt with or validated. I’ve been told to accept it as a compliment and do my job,” one woman wrote on InHerSight. Another user wrote her workplace “promotes harassment of women,” and that the CEO is “telling women to dress in a way that is not distracting to men.” As for complaints, the user posted, “human resources staff are unresponsive.”
While these posts mention the companies, similar to Glassdoor, the reviewers remain anonymous. “We’ve definitely noticed an increase in the number of comments on the site that reference sexual harassment and use the hashtag, ‘MeToo,’” says Mead, whose site is based in Durham.
From Harvey Weinstein to the #MeToo movement, the nation has cast a watchful eye on predators – both in the workplace and beyond – as many women have shared their stories of workplace harassment.
However, there are many more who have not, which makes it difficult to know how widespread the problem really is. One reason for the silence is the common use of nondisclosure agreements in the settlement of sexual harassment claims. These agreements bar victims from speaking about their experiences, and some states, such as California, have proposed doing away with such agreements as many argue they allow harassment to be kept secret and continue.
While the attention on the issue has changed, the challenges facing women who have been harassed remain daunting, in the workforce and in the courtroom. And that’s why many in the legal and corporate realms are unconvinced that the attention will lead to real change for workers far removed from the glaring lights of Hollywood and high-profile endeavors such as media and politics.
“Most victims of sexual harassment, primarily women, stay silent or move jobs, if possible. Only about 10 percent of harassment claims ever get reported, internally at the company or externally to the [U.S.] Equal Employment Opportunity Commission,” Campbell Law Professor Melissa Essary says. “That means that 90 percent of sexual harassment never is reported.”
In fact, according to the EEOC, nationwide, there were 6,696 charges alleging sexual harassment last year. That’s down from 6,758 in 2016, 6,822 in 2015, and just shy of 8,000 back in 2010.
That pattern held true in North Carolina, where there were 231 charges last year, down from 265 in 2016, 296 in 2015 and 370 back in 2010.
And even now, lawyers across the state who work in this field say there is no groundswell of allegations headed toward the courts.
According to a search of federal court filings in North Carolina, there are 14 active cases alleging some form of job discrimination based on sex, including sexual harassment – four in the U.S. District Court for the Eastern District of North Carolina, one in the Middle District and nine in the Western District. Of those, half involve claims of sexual harassment in the workplace.
Little Movement Following Spotlight
The drop in allegations can be surprising given the attention to the matter. But experts point to a variety of reasons.
One is that women, when the economy is strong, simply change jobs to get away from the harassment. The fact that allegations both in the U.S. and North Carolina were higher in 2010, at the height of the recession, than now underscores that point.
For victims who do want to fight, pursuing resolution remains daunting. They’re faced with challenges that include limited legal remedies, significant costs – and even a lingering stigma.
Often, the most impacted victims of sexual harassment work for minimum wage and have limited options – outside of the place where they’re being harassed – when it comes to earning the income they need to support their families. The vast majority of people bringing sexual harassment charges through the EEOC locally are minimum-wage workers from rural parts of the state.
And the fact that so much harassment is not reported is problematic. “Most sexual harassers are serial harassers, and so the lack of reporting allows them to offend repeatedly,” Essary says. “But one can hardly blame the women at the workplace who don’t complain. Of those 10 percent who complain of sexual harassment, almost 90 percent of them are retaliated against by their employer. Reporting any type of harassment often labels the victim as a complainer or whiner, when all the victim really wants is a job without being harassed.”
Josh Van Kampen, a Charlotte lawyer, says that sexual harassment work comprises about a quarter of case work at his firm.
That amount of work has been a steady drumbeat since he started practicing back in 2004. Like many, he expected “an uptick” in complaints as #MeToo spread. “We actually haven’t seen one,” he says.
At the same time, he adds, “the overwhelming majority of women” don’t report the cases internally or go to a lawyer because it’s such an “intensely private matter” and women can blame themselves for what happened.
Vulnerable from lack of employment options, some have been preyed upon by harassers who know their victims need the cash and can get away with making inappropriate demands backed by demeaning promises of being hired and of not being fired. “Typically, more sexual harassment cases occur in which women hold low-wage jobs, such as the food services industry and retail,” says Campbell’s Essary, adding that, “blue-collar women in manufacturing industries that used to be the preserve of men also suffer disproportionately from harassment. It’s about power.”
Attorney Chris Strianese from Charlotte says industries more notorious for sexual harassment tend to be male-dominated. They are also industries where there is a lot of money at stake and “people get big heads about it.”
Repeat offenders include construction, software and finance companies, Strianese says. Others note restaurants and car dealerships – both known for fast-talk and high turnover.
A High Bar for Cases
While some violations of the law may seem unquestionable, the bar is set high and may not be applicable at all for many small businesses.
Under Title VII, federal law governs sexual harassment and there are precedent-setting cases that show just how difficult it is to win an already uphill battle.
Laura Noble, a Chapel Hill lawyer, points to two cases in particular.
In Ocheltree v. Scollon, male employees at a costume manufacturing company simulated sexual acts on mannequins, sang graphic songs and bragged about their sexual exploits – all while awaiting reaction from a female employee.
In 2002, a jury found that the female employee was the victim of sexual harassment under Title VII, awarding her $7,280 in compensatory damages and $400,000 in punitive damages, which was reduced to just under $43,000. Shortly after, the panel members of the Fourth Circuit Appellate Court vacated the jury verdict, but reversed the punitive damages, finding that much of the behavior was not aimed at her because of her sex and was not severe enough to create a hostile work environment. The following year, the appellate court vacated that decision. It affirmed the verdict for compensatory damages, but reversed the punitive damages, finding the company did not have knowledge of the behavior.
In the case of Hernandez v. Fairfax County, a female firefighter claimed a male co-worker repeatedly positioned his body against hers when she told him not to, told other co-workers she was having an affair and repeatedly forced her to maneuver around him.
The district court found last year that the behavior was neither severe nor pervasive enough to be sexual harassment. Earlier this year, those findings were reversed by the appellate court, with the case set to go to a jury trial.
The Challenge in Small Businesses
Another challenge for victims of sexual harassment is that Title VII applies to employers who have 15 or more employees – a huge problem for victims of sexual harassment in many small businesses.
In such cases, victims and their counsel must look to limited options for remedy under state law.
One option under state law is to sue for battery, notes Van Kampen. However, while there is a 3-year statute of limitations on such cases, it fails to address verbal harassment.
A second option is to sue for intentional infliction of emotional distress, which is hard to prove, he says.
The cases settled outside of court – which he says is about 85 percent – usually have a non-disclosure agreement.
If the harasser is not terminated, the conduct might continue for more victims who are unaware what awaits them. “The most difficult challenge is that sexual harassment cases often come down to ‘he said, she said,’” Strianese says.
And another challenge, he says, is that the company attitude can be the person was just joking around.
But it “doesn’t matter if the intention was malicious,” Strianese says, if “what was done here was improper [and] is making someone uncomfortable and violates the law.”
Corporate Lawyers Cite Better Training
What lawyers are seeing, if not a flood of cases, is a rise in companies seeking training in the matter.
“In the past the training was done primarily to limit legal liability,” Raleigh attorney Randy Avram says. “The training we’re doing more recently, it will have impact on your legal liability, but should also have the benefit of making your workplace a better workplace,” including in the area of retention.
InHerSight’s Mead says employer responsiveness to sexual harassment concerns “is the second-most powerful driver of a woman’s overall satisfaction at work. In fact, employer responsiveness is more than three times as important to women than paid time-off policies and five times more important than a company’s family growth support initiatives.”
There is much more work to be done.
Noble, of Noble Law, says she hears backlash regarding recent attention on the issue of sexual harassment. That backlash has included people saying there are those who are trying to be “relationship police” and are “taking romance out the workplace.”
Sexual harassment is not one employee asking another for a cup of coffee and the other refusing, she points out. It is severe and persistent and impacts a person’s employment, and there are strict federal guidelines to govern this.
Sustaining the Workforce
Molly Demarest, director of Big Top, an online platform and events company in association with American Underground, says that if work environments aren’t healthy, “it becomes a retention situation.”
Employees want to know whether businesses are places where they can thrive and advance, she says. “My observation is, the more we talk about it the better,” she says. She and others would like to see more men involved in public discussions.
Essary of Campbell Law says the lack of uptick in sexual harassment charges “could change if the movement takes hold in the ordinary workplace, and not just Hollywood.
“Think the equivalent of the power of the suffragette movement, where both women and men marched for change,” Essary concludes.
By Jennifer Henderson – Staff Writer, Triangle Business Journal