This post was written by Jessica Clay, a volunteer who serves on our Economic Justice Committee.
It seems lately that every time you read the news, look at social media, or watch TV, another man is being accused of sexual harassment or assault. Unfortunately, I have a lot of knowledge in the area of sexual harassment. Although I am currently disabled, in my previous career I was a lawyer who represented employees in litigation with their employers, including cases of sexual harassment.
Currently the news and the “Me Too” campaign on Facebook are highlighting just how common and pervasive sexual assault and harassment are for women in American society. Celebrities, newscasters, and politicians are being accused of harassment on a daily basis: from media personalities like Matt Lauer and Robert Ales; celebrities like Harvey Weinstein, Bill Cosby and Garrison Keillor, to politicians including Rep. John Conyers, and now Sen. Al Franken. Locally, two Minnesota lawmakers have just resigned.
Like most women, I have been a target of harassment, and I was one of the many women who wrote a “Me Too” post on Facebook. During my legal career, I heard many stories of women being grabbed at work, touched at office parties, asked out on dates, and given inappropriate gifts (like sexy underwear). Women are asked for sexual favors, and are subjected to pornography and sexual jokes. And, in my experience, it seems women are grabbed or patted on the butt pretty much constantly at work.
I probably shouldn’t have been surprised, but it used to amaze me that there were so many men who tried to argue that the beautiful 20-year old female employee was really interested in a sexual relationship with her decades-older boss. And every day, in the workplace and the world, women are subjected to harassing terms and words, being called everything from “honey” and “baby” to “bitch and “cunt.” Women’s jobs are threatened if they rebuke an employer’s advances. I have heard of women being promised promotions in exchange for blow-jobs, and raises in exchange for sex. And sadly, I know of women who were sexually assaulted by their employers.
Sexual harassment has been around since the day women entered the workforce. What is different now is that society is beginning to believe women and find sexual harassment unacceptable. This transparency and acknowledgment of harassment seems to be leading to a societal change. Harassers are being outed and terminated, and women are feeling more comfortable sharing their stories. What does this mean for women going forward? The economic costs to employers, both in the workplace and in the public eye, are starting to outweigh the “benefits.”
Sexual Harassment Is Common
In 2016, a study by the Equal Employment Opportunity Commission (“EEOC”), on sexual harassment, found that, of the more than 90,000 charges of discrimination filed in 2015, more than one third included an allegation of some type of harassment, based on sex, race, disability, or some other protected category. The taskforce study also concluded that somewhere between 25% to 85% of women experienced sexual harassment in the workplace.
Harassment happens to women of all races. A 2010 study found that members of racial minority groups report higher levels of harassment than whites. Just like white women, minority and indigenous women face harassment, but their harassment is often compounded by other forms of discrimination.
My experiences as an employment lawyer confirms this conclusion. For instance, I had a number of cases involving discrimination and harassment against Hispanic factory employees, many of whom were undocumented. In one such case, a supervisor sexually harassed the undocumented Hispanic women because he believed they were less likely to report the harassment because of their precarious employment status. My client, a petite woman less than five feet tall, objected to her supervisor’s sexual harassment and refused to “play along” with him. He then assigned her to the most difficult and physically demanding job on the line, and she was the only woman in that position. Discovery in the case revealed that the women who “went along” with the harassment, were given special benefits and preferential treatment, such as more favorable work assignments and better tools and equipment.
My client alleged that her supervisor frequently made sexual comments and innuendos, and that he would rub himself and his genitals against the backsides of the Hispanic women as he passed them on the production line. The supervisor repeatedly told my client that he wanted to have an affair with her. When she asked him for new equipment necessary to do her job, he stated she was “lucky” because he liked her. The employer was a pork processing plant, and the supervisor sometimes carved meat into the shape of a penis and then showed it to the female employees. On one occasion, the supervisory allegedly mimicked performing oral sex on a pig carcass in front of the female employees. Eventually my client quit her job, despite lacking a replacement position, because she was unable to endure the harassment any longer.
Regardless of the employee’s race, sexual harassment is largely unreported. The EEOC Taskforce report notes that common responses to harassment included avoiding the harasser and ignoring or downplaying the harassing behavior. The EEOC estimates, however, that, three out of every four employees who experienced sexual harassment did not report the harassment to a manager, supervisor or union representative. And the reasons for the lack of reporting are unsurprising – employees don’t report harassment because they fear they will be disbelieved, they think no one will take action on their claim, they blame themselves, or they fear social or workplace retaliation.
Sometimes women just doubt themselves and don’t believe they could be experiencing harassment. That is exactly what happened to me. The first time I was touched inappropriately at a work event, I wasn’t certain if the hand on my leg was intentional or an accident. The second time it occurred, though, I knew his hand didn’t “just happen” to squeeze my inner thigh.
What Are the Costs to Employees?
Women who experience harassment in the workplace face mental, physical, and emotional consequences, including increased anxiety and stress, and a loss of professional confidence. A study concluded that 90-95 percent of women who reported sexual harassment, experienced physical consequences as a result, such as stress, anxiety, depression, headaches, nausea, and PTSD. Such physical ailments may cause the employee to miss work and/or incur healthcare costs. I often reminded my clients that they usually spent more time at work than at home. Therefore, it is unsurprising that working every day in a toxic environment will affect an employee’s health and well-being.
Sexual harassment prevents women from obtaining their career and financial goals. Women who are harassed may be terminated in retaliation for refusing the sexual advances of the harasser. If the employee reports the harassment, she may be fired or experience other forms or economic retaliation such as: demotions; salary cuts; lack of promotion or training opportunities; and impediments to job advancement. Women may also incur legal costs in trying to seek redress for the harassment. At other times, women feel they have to accept or ignore harassment, in order to get ahead in the workplace. Frequently, women do not want to “make waves” or raise an allegation against their employer.
Unsurprisingly, many times women quit their jobs or transfer departments to escape the harassing situation. These women face lost wages and benefits, as well as, emotional distress. I know of clients who lost their cars and homes because when they lost their jobs, they couldn’t make payments or afford their mortgage.
Research also shows that a harassed woman may take more sick leave and time off work, thereby losing wages, because of the stress of the harassment. Harassment is a distraction in the workplace that does not only affect the woman who was harassed. Researchers have found that co-workers who observed sexual harassment were more likely to experience lower psychological and physical well-being, either in empathy with the harassed employee, or because of fears that she might be harassed next.
What Are the Costs to the Employers?
With the ever-increasing attention to sexual harassment, it is no surprise that employers are experiencing financial consequences. Making harassment more public and more painful to employers will help put an end to this abuse of power. Between 2010 and 2015, through the EEOC’s administrative enforcement prelitigation process, employers have paid out almost $700 million to employees alleging harassment through the Commission, before the cases even went to court. In 2016, more than 6,700 charges of sex harassment were filed with the EEOC. In that year, the EEOC obtained more than $40.7 million dollars in monetary benefits on behalf of sexually harassed employees. And again, that statistic doesn’t include the millions of dollars obtained by harassed employees through litigation.
Sexual harassment settlements and court damages awards can be extremely significant to employers. In Gretchen Carlson’s 2016 lawsuit against Fox News and Roger Ailes, 21st Century Fox settled the claim, after only two months, for $20 million dollars and a public apology. In 2011, Ashley Alford, an employee of Aaron’s Rent-to-Own, was awarded $95 million, later reduced to $40 million because of a cap on federal damages. She claimed the store’s manager not only sexually harassed her for a year, but also assaulted her, including hitting her in the head with his penis in a stockroom. In 2012, a federal judge awarded a physician’s assistant, Ani Chopourian, $168 million for her claims that accused doctors of her employer of constantly asking her for sex, surgeons telling her they were horny, and doctors slapping her butt.
Harassment creates financial costs for employers even when there is no official complaint or lawsuit. Harassed women are less productive. They leave their employment more often, resulting in increased turnover in the workplace. Reports of harassment can decrease employee morale and damage the employer’s reputation and brand among employees and in the public eye. The harassment can similarly impact an employer’s hiring and retention of employees. A 2008 study found that employees are less likely to work for a company if they believe it has a harassment problem
Workplace sexual harassment is nothing new, but we’re hearing more and more about it as women come forward to tell their stories. The economic costs to employers are starting to add up and companies are finally starting to proactively fire harassers. News outlets are taking men accused of harassment off the air. And employers are starting to investigate and proactively respond to the abundant claims of harassment.
Will the increased publicity and attention to harassment change the way employers work to prevent and respond to harassment? We need to make the answer “YES.” We need to keep talking about harassment so that women don’t feel stigmatized, so women know they will be believed, and to bring the problem out into the open. We should keep this momentum going, and not let harassment be swept under the rug again. Women should continue to demand an end to this unacceptable behavior and should continue to obtain compensation for the harassment. As they say, “money talks.” When employers start to understand the significant economic consequences of harassment, perhaps real change can begin to take place in our work places and society. Let’s make sure the economic costs to harassment mean a cultural shift to end this abusive workplace behavior.
Equal Employment Opportunity Commission Select Taskforce on the Study of Sexual Harassment in the Workplace (2016). https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf
Equal Employment Opportunity Commission, Enforcement and Litigation Statistics, Charges Alleging Sex-Based Harassment, FY 2010 – FY 2016 (2016) https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm
Susan Crawford, The Economic Impact of Sexual Harassment in the Workplace, USA Today (March 1995).
Josh Young, What Are the Costs of Workplace Harassment?, Workplace Answers Blog (Dec. 1, 2016).. http://www.workplaceanswers.com/resources/blog/the-effects-of-sexual-harassment-in-the-workplace/
Kari Paul, The Damaging, Incalculable Price of Sexual Harassment, Marketwatch, (Oct. 10, 2017). https://www.marketwatch.com/story/as-harvey-weinstein-takes-a-leave-of-absence-heres-how-much-sexual-harassment-costs-companies-and-victims-2017-10-07
Jeremy Sierra, Brand Response-Effects of Perceived Sexual Harassment in the Workplace, Journal of Business and Management – Vol. 14, No. 2, (2008). http://www.academia.edu/4963305/Brand_Response-Effects_of_Perceived_Sexual_Harassment_in_the_Workplace
Escobar v. Swift and Co., 494 F. Supp. 2d 1054 (D. Minn., 2007). https://scholar.google.com/scholar_case?case=3126926349249125637&hl=en&as_sdt=6&as_vis=1&oi=scholarr
The Advocates for Human Rights, Stop Violence Against Women, The Effects of Sexual Harassment, (May, 2007).
Elizabeth Larsen, The Economic Costs of Sexual Harassment, The Foundation of Economic Education, (2009).
Jana L. Raver and Lisa H. Nishii, Once, Twice, or Three Times as Harmful? Ethnic Harassment, Gender Harassment, and Generalized Workplace Harassment, 95:2 J. of Applied Psychol. 236 (2010). http://psycnet.apa.org/record/2010-04488-002
Madeline Farber, Where Gretchen Carlson’s $20 Million Settlement Ranks Among the Biggest Sexual Harassment Cases, Fortune Magazine (Sept. 6, 2016). http://fortune.com/2016/09/06/biggest-sexual-harassment-cases/
Kevin McCoy, Sexual Harassment: Here Are Some of the Biggest Cases, USA Today (Oct. 25, 2017).