05-07-2018
By Jessica Caspe, Esq.
With the #MeToo movement, spurred on in part by substantial media coverage, there is a renewed focus and awareness about the prevalence of sexual harassment in the workplace. Many individuals who have publicly shared their stories, however, are not necessarily discussing experiences that occurred recently. Some of the recent media headlines focus on conduct that took place years ago and is now being raised. Unfortunately, most employees who experience harassment do not immediately report it for fear of retaliation among other reasons. Until that changes and employees feel safe and comfortable raising concerns in the workplace, employers cannot fully address harassment that may exist.
The staggering statistics on the number of individuals who have experienced sexual harassment in the workplace have become familiar to many. According to a recent Washington Post-ABC News Poll, nearly 50% of women have experienced sexual harassment in the workplace, and about 25% of those women identified men with "influence" over their work situations as the culprit.1 This translates to approximately 33 million U.S. women who have experienced sexual harassment in the workplace.
Focus on Retaliation
The Equal Employment Opportunity Commission (EEOC) defines retaliation as “when an employer takes a materially adverse action because an individual has engaged, or may engage, in activity in furtherance of the EEO laws the Commission enforces.” The Supreme Court has held that a “materially adverse action” under the anti-retaliation provisions is broader than under the anti-discrimination laws.2 In short, retaliation has been broadly construed to encompass any action that could dissuade a reasonable employee from making or supporting a claim of discrimination.
Obvious materially adverse actions include discipline or denial of a promotion, but more subtle behaviors, such as isolating an employee, can also be considered retaliation. The EEOC lists the following as additional examples of potential materially adverse actions: threatening reassignment, scrutinizing work or attendance more closely, and verbal abuse even if not sufficiently “severe or pervasive” to create a hostile work environment.
While the majority of women polled by the Washington Post-ABC News state they felt “angry” or “intimidated” or “humiliated” by the experience, according to the same poll, only 42% said they reported the harassment to someone in “a supervisory position.” According to a recent CareerBuilder survey, the percentage of employees who do not report harassment is much higher: 72% of employees who believe they have been subjected to sexual harassment do not report it.3 Other studies similarly have found that anywhere from 70% to 75% of employees do not report sexual harassment.
The EEOC Select Task Force Report of 2016 reports similar results, finding the common responses by those individuals who have been subjected to harassment include: avoiding the alleged harasser, downplaying the seriousness of the situation, and attempting to “ignore, forget, or endure the behavior.”4 And, of course, the least common action was to report the harassment. According to the Report, the number of individuals who do not file a formal complaint ranges anywhere from 87% to 94%, and 70% of individuals do not raise the objectionable conduct with a supervisor, manager, or union representative.5
Many studies have found that employees generally do not raise concerns in the workplace out of fear of retaliation. A recent Society for Human Resource Management (SHRM) survey found that 76% of non-manager employees who believe they experienced sexual harassment did not report it for many reasons, including a fear of retaliation. Other reasons employees did not report the harassment include a belief that nothing would change.6 The CareerBuilder survey found that employees did not want to report the harassment for fear of being “labeled a troublemaker” (40%), pitting their word against the other person’s (22%), or fear of losing their job (18%).7
The U.S. Forest Service, mired for years in allegations of sexual harassment and discrimination, including class action lawsuits, underscores this point. In a recent survey of nearly 2,000 of its employees in California, the majority of those interviewed were aware the agency had a “zero tolerance” policy for harassment, but most who experienced harassment still did not report it because they did not trust the reporting process, and had concerns over confidentiality and the negative impact it would have on their job.8
Statistics support a basis for this fear of retaliation: one study found that 75% of employees who raised concerns about workplace misconduct faced retaliation.9 Additionally, since 2008 the number of retaliation charges filed with the EEOC has more than doubled. Retaliation charges continue to be the number one claim filed with the EEOC, now accounting for 48.8% of all charges made by employees.
What Next?
How do employers reconcile these statistics: the number of employees who believe they have been sexually harassed versus the percentage of employees actually reporting their concerns? It is in both the company’s and the employee’s best interest to have concerns raised in a timely manner so that any inappropriate behavior can be addressed, but the key is making people comfortable and providing an environment in which it is safe to raise such concerns.
Importantly, just because an employer has not received many formal complaints of harassment does not necessarily mean there are no issues in the workplace. After the New York Times reported about payouts to women who had accused Bill O’Reilly of Fox News of sexual harassment, the company commented, “No current or former Fox News employee ever took advantage of the 21st Century Fox hotline to raise a concern about Bill O’Reilly, even anonymously.” Yet in subsequent interviews, several women stated they did not complain due to fear of retaliation. Because the number of harassment complaints an employer receives may not be an accurate reflection of whether there is harassment in the workplace, employers cannot rely on an absence of reported complaints as proof that their workplace does not have problems.
Employer Takeaways
Cultivating a culture where people feel comfortable raising concerns starts at the top. It is critical for leaders to send a clear message that no harassment will be permitted, and to encourage employees to raise any concerns. Companies should also make clear that all claims of harassment will be taken seriously, regardless of who is accused of engaging in the inappropriate behavior.
Conducting timely, objective investigations of complaints is crucial, but the investigation is not an end unto itself. Following up with the complaining employee after an investigation, regardless of the outcome, is key in making sure that no retaliation is taking place.
It is also important to review current policies and investigation procedures to make certain that employees have and are aware of different avenues in which to raise concerns, depending on their comfort level, and that they know that all investigations will be handled as confidentially as possible.
Anti-harassment training should be conducted regularly and include a specific component on retaliation, including addressing how to interact with employees after they have raised concerns in the workplace and developing strategies to prevent even the perception of retaliation.
The bottom line is that in order to end workplace harassment, companies must also address retaliation, and recognize that employees may be afraid to raise concerns in the workplace, which is against everyone’s best interest.