6 Reasons Why Sexual Harassment Goes Unreported

There are numerous women, and men, coming forward these days with claims of sexual harassment. The media seems to report another occurrence on a daily basis.  Unfortunately, Many of those instances pertain to harassment that occurred years, and even decades, ago.  That is not to minimize the severity, or importance, of those belated claims, but an observation that many do not report sexual harassment when it happens.  As such, we have probably only seen the tip of the sexual harassment iceberg, even though many have come forward recently.  We are only aware of that which is reported.

The problem with the failure to report, or complain, is that the harassment continues to occur and spread like wild fire throughout the workplace, and sometimes entire industries.  The Statute of Limitation for civil matters is one year.  In California, if an administrative claim (EEOC or the DFEH – Department of Fair Employment and Housing) is not filed within a year then the claim cannot be brought.  It has been said that there is no statute of limitation on doing the right thing. So, still reporting the matter after some time still may have some deterrent effect.  However, taking quick and decisive action is not only more effective for eliminating sexual harassment in the workplace, but also provides recovery for the victim.

To address that problem, employees, and employers, need to understand why employees fail to report or complain. Over the years we have spoken to hundreds, if not thousands, of harassment victims and the following are common reasons given for not reporting timely.

1. Embarrassed – The events that occurred are not of the victims making and the employee is so disgusted by the harassment, they can’t even speak of such things. The victim would rather repress such thoughts, as opposed to speaking about them. Note, this is even more difficult for those with a history of abuse. For some, a course of therapy may be needed to cope.  Also, the employer and the harasser don’t get a “pass” if you have a history of abuse. Two “wrongs” do not make a “right.”

2. Intimidated – Often the harasser is a person who has power or authority over the employee and thus the employee is afraid. In many instances, the harasser makes various threats that jeopardize an employee’s job, earnings, and/or personal safety. Sometimes those threats go beyond the workplace and affect the employees personal life.

3. Won’t be believed – Many times the harasser works in a surreptitious manner and things only happen behind closed doors. I have seen instances where multiple employees were being harassed at the same time and the employees all thought the harassment was only occurring to them. The fear that their testimony will not be believed often keeps employees from complaining and allows the harassment to continue unabated.

4. Retaliation – The victim is often afraid for their job and needs to keep working in order to provide for themselves and their families. The employee thinks that if they file a complaint, claim or lawsuit, that they will be immediately fired. However, such retaliation is equally as unlawful as the sexual harassment in the first instance. Often when a lawsuit is filed, the defense attorneys advise the employer not to take any action against the victim, as that would give rise to an additional cause of action for retaliation in the lawsuit. That notwithstanding, the reality of retaliation is too overwhelming for many employees to say even a peep to anyone about the harasser. The sexual harassment was unlawful and allowed to occur, what would make the employee believe the employer would not engage in unlawful retaliation. There generally is not a good track record in that regard, making it difficult for the employee to believe that the law against retaliation will protect their job.

5. Employment At-Will – Unfortunately, many employers misconstrue the notion of “at-will” employment and advise their employees that they can legally terminate their employment for “any reason” and they don’t have to give them a reason. This false notion creates even more fear of retaliation for the victim as the employer asserts a false sence of power over the employee.

In actuality, the “at will” doctrine provides that an employer can terminate employment for any “lawful” reason and the employer does not have to give a reason. Of course, there are many unlawful reasons for termination. An employer cannot legally terminate an employee simply because of age, race, religion, national origin, sex/gender, disability, pregnancy, and a few other areas that define our civil rights and are protected by law.  Sexual harassment is a form of gender discrimination and complaining of such is protected activity.

When an employee alleges an unlawful reason for termination, i.e. because they complained of sexual harassment, the at-will doctrine no longer operates, and the employer must show just cause or a legitimate business reason for their actions (so the employer better have a good excuse for terminating an employee). However, by misconstruing the At-will doctrine, many employees are lead to believe that if they complain the employer can terminate for “any reason” and they will lose their jobs without any recourse. Simply put, that’s not the law and a misconception created by many employers and unethical managers with bad intentions.

6. Company or Industry Culture – There are certain companies or industries where the norm is to allow unlawful harassment in the workplace and such tolerance has been so widely accepted that no one questions such abhorrent conduct. The entertainment industry, for example, has for so many years allowed sexual harassment to permeate the industry. However, now there has been an outcry and landslide of accusations against directors, producers, and actors who have for years operated under a false premise that its okay to sexually harass women and take advantage of their position of power over those who are desperate to work.

However, over time, it has become evident that the vast number of victims cannot stand idle any longer. The snowball effect of so many victims coming out at this juncture is a result of all the above reasons that victims refused to complain when the harassment occurred. This has also occurred with our state and federal elected officials with congress taking a hard look at it’s ethical practices (or lack there of).

In conclusion, we do not point out these reasons so employees can make excuses for their failure to report, but to recognize the source of the problem. You can’t address the problem until you understand that it exists.  Go get ’em.

We welcome your comments and feedback.  Also download our book Stop Sexual Harassment Today!.  It is offered through Amazon and just “clink” (yes, that’s “click on the link,” you heard it here first). We have priced the book ridiculously low as we seek to help as many people as we can and we are merely covering our costs. And, if you could please leave a review with Amazon, that helps us get in front of others who need our help.

Stop Sexual Harassment Today – Kindle Ebook

Stop Sexual Harassment Today

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Prevent Sexual Harassment – A Victim’s Guide to Protect Rights in the Workplace

Recently, I have entered the world of the self published with Stop Sexual Harassment Today!, which is available through Amazon.

With sexual harassment in the news almost every day with a new public figure being accused by multiple women regarding the abuse they have suffered, there is clearly a need for women, and men, to understand their rights in the workplace. Whether its Harvey Weinstein, Matt Lauer, Charlie Rose, Bill Cosby, Louis C.K., Roy Moore, Al Franken, Dustin Hoffman, John Conyers and the list goes on, employees are fed up.

This book is for those victims who need to take steps to stop their own battle with sexual harassment and take steps today and make a difference. This book goes through various reasons why employees fail to complain, helps you work through those obstacles, and learn how to make the record and properly document and make complaints that will help prove your case. The book covers how to get an attorney, what attorneys are looking for, the ins and outs of the contingency agreement with your attorney, and what to expect if there is a lawsuit. You will have a plan of action and no longer fear the unknown. You deserve peace of mind and you have a right to work in an environment that is free of unlawful discrimination and harassment.

This book is a compilation of the many years, I have spent talking to employees and helping them with their problems. This has give me great insight into the reasons why employees often fail to complain of sexual harassment. It is counter intuitive, since the harassment is often so pervasive in the workplace and happens in many instances on a daily basis. With many of the public figures above the harassment happened years ago and the “me too” affect is astonishing. As stated in my book, there is no statute of limitation on doing the right thing. So, many of those who are complaining just want it to stop. Download my book from Amazon, it is a must read for employees and employers alike.

Employment Law – General Overview

The following article provides a description of employment law:  (This Article referenced in pertinent part)

The employment policy of the United States over the course of the twentieth century and into the twenty-first evolved to emphasize greater inclusion of all people seeking employment. The American workforce has grown dramatically and has diversified to include more women and minorities. These changes began with the massive entry of women and African Americans into the workforce during World War II. The number of minorities in the labor force will continue to increase in the twenty-first century primarily because of immigration and also because of federal policies that encourage minority hiring and promotions. The number of older Americans in the workforce will also increase, due to the rising age of the American population and the erosion of retirement benefits. New employment laws place obligations and limits on employers and confer new rights on prospective and present employees. Because these developments affect all of us, we should be acquainted with these rights and obligations and be aware of the new problems that arise in a changing labor force.
Congress has provided many rights for job applicants and employees to ensure that all Americans have an equal opportunity in securing employment and gaining advancement. Under some of the basic employment rights provided by Congress since 1963, it is unlawful for employers to:
  1. discriminate in employment on the basis of race, color, religion, sex, or national origin, provided the employer has a workforce of at least fifteen persons (Title VII of the Civil Rights Act of 1964);
  2. not pay male and female employees equally when they perform the same or substantially similar kinds of work (the Equal Pay Act of 1963);
  3. use age as a determining factor in hiring, promoting, or discharging employees age forty and over, where the employer employs more than twenty employees (the Age Discrimination in Employment Act of 1967);
  4. discriminate against persons with disabilities who are otherwise qualified, with or without reasonable accommodation, to perform the essential functions of a job (the Americans with Disabilities Act);
  5. discriminate against Vietnam veterans if the employer is a contractor or sub-contractor of the federal government and its contracts equal or exceed $10,000 (the Vietnam Era Veterans Readjustment Assistance Act);
  6. discharge an employee for reporting health or safety violations on the employer’s premises (the Occupational Safety and Health Act);
  7. require the employee to work in an unsafe or hazardous area without providing adequate safeguards (the Occupational Safety and Health Act);
  8. deny most employees the right to take leave to provide care for a child, spouse, or other close relative in a medical emergency or related to the birth or adoption of a child (the Family and Medical Leave Act).
The Civil Rights Act of 1991 made it easier for employees to bring charges of discrimination in hiring, promoting, or firing against an employer. The responsibility for disproving a charge is now on the employer. And, if the court finds workplace discrimination, the employee is entitled to receive payment for damages and for jury trials. The court can also order the employer to rehire, promote, or reassign the employee to whatever job he or she lost because of the discrimination.
Most states also have placed limits on employer actions, enacting laws that address many of the same issues. For example, almost all states have statutes barring discrimination based on race, color, national origin, religion, and sex. Many states also prohibit other types of discrimination (for example, discrimination based on ancestry, marital status, or sexual or political orientation). In employment law, the federal statutes provide the minimum protections for employees, but many state laws provide employees with additional rights and place greater limitations on employers.
By law, an employer cannot discriminate against employees or prospective employees. An employer who asks, either on an employment application form or in an interview, about an applicant’s race, color, sex, religion, national origin, age, marital status, childbearing plans, disability, military service record, or arrest record and then uses the information for an employment decision may be violating federal or state anti-discrimination employment laws. Any employer who advertises a preference for applicants who are members of certain groups (for example, white, female, or Christian) may be unlawfully discriminating against individuals who are not hired.
Employers may be found to be discriminating against employees in two ways. A court may find that an employer treats some people better than others because of their race, color, religion, sex, national origin, age, or some other characteristic. This is called “disparate treatment.” For example, a court may investigate a company that has been known to pass over its African American employees for managerial positions, even though it does not have a written policy of not hiring blacks for management.
A court may also find that although an employer’s employment practices look neutral in their treatment of different groups, they actually are harsher on one group or another. This is called “disparate impact.” For example, a court would question a height and weight requirement used to exclude applicants for a job as a cook. Although a height and weight standard could be justified as a valid business reason if it were clearly related to the physical demands of a job, such as logging, there is no legitimate reason why a cook must be a certain height or weight. And although requiring a cook to meet a height and weight requirement may seem neutral—it wouldn’t explicitly require a cook to be white or male—it would have a disproportionate impact on women and people of Asian descent, for example.
Sometimes an employer has a legitimate reason to reject an applicant because of a characteristic. For example, some courts have permitted state prisons to choose to employ only males to guard male prisoners (and female guards for female inmates) where matters of the personal privacy of the inmates are of concern.
Anti-discrimination law continues to evolve to meet new challenges in the twenty-first century. For example, to guard against the misuse of genetic information, which may include information from a genetic test as well as from family medical history, thirty-one states have enacted statutes specific to genetic discrimination in employment. In addition, genetic discrimination has been prohibited in federal employment by an Executive Order signed by the President in February 2000. Under the Executive Order, federal executive agencies cannot use genetic information or family medical history to make employment decisions. Congress also is moving to act in this area. On February 17, 2005, the Senate passed the Genetic Information Nondiscrimination Act of 2005 and moved the bill to the House of Representatives, where it remained in committee as of May 2006.
Another evolving area of anti-discrimination concerns workers’ sexual orientation and gender identification. In thirty-four states, it is legal to fire someone based on their sexual orientation; in forty-four states, it is legal to fire someone based on gender identity. However, employers themselves are changing their policies to provide basic protection to gay, lesbian, bisexual, and transgender people in the workplace. Only one of the Fortune 50 companies—ExxonMobil—does not have a sexual-orientation anti-discrimination policy, and 420 of the Fortune 500 companies include sexual orientation in their anti-discrimination policies. The federal government is lagging behind in this area. The Employment Non-Discrimination Act (ENDA), first introduced in Congress in 1996, would expand the nondiscrimination requirement found in Title VII and other laws to include sexual orientation. However, as of May 2006, it had not been reintroduced to Congress for consideration.
(article referenced in pertinent part)
Click here to see the rest of this article cited as: Trends and Developments in Employment Law Job Description, Career as a New Trends and Developments in Employment Law

“At-Will” Employment – Do I Still Have A Case

Many believe that “at will” employment means an employee can be fired for any reason. However, the law is clear that “at-will” employment means the employer can “terminate for any ‘lawful’ reason without cause.” In that regard, both congress and the California state legislature, have passed laws limiting the employer’s conduct in certain areas. As a result, certain reasons for termination are off limits and have been deemed to be “unlawful.”
Under Title VII of the Federal Civil Rights Act, and under the Fair Employment and Housing Act in California, an employer cannot take a negative employment action against an employee because of certain protected classifications. The protected classes are age, gender, race, national origin, disability, sexual orientation (in California) and a few others. Cal. Govt. Code §12940 et. seq. The law states that an employer cannot use a protected class as motivation for a negative employment action, and thus, an employer must have a legitimate business reason for its actions.  As such, the at-will doctrine is not an iron clad shield against liability.
Keep in mind that the law has boundaries. Conduct that may be considered wrongful, unfair, improper, unjust and/or harassing, is not necessarily actionable or unlawful, If such conduct was not motivated by a protected classification, then it is not unlawful per se.  Even though unfair, not all conduct is unlawful.
As to terminations, employees often assert that there was a “wrongfully termination” for which they can sue. Understandably, every termination seems “wrongful.”   When an employee is terminated there has been a separation of an economic relationship that effects people’s lives greatly, and thus it always seems “wrongful.”  Employees  never say, “that termination went great” or “they handled that perfectly.”  Although it may seem to be “wrongful,” in laymen terms, all terminations are not unlawful. it is generally within the employer’s right to terminate its employees, and an attorney will need to determine if the employer could be found liable. If so, the employee is entitled to recover damages, which include loss of earnings and emotional distress.
It is important for employees to remain aware of the events that occurr when their employer takes action against them. Although they may believe that they have suffered discrimination or harassment, the employer’s actions must be related to a protected class or some unlawful conduct to be actionable. An employee must determine the underlying reason for the action and the evidence that supports that conclusion, which may not be the reason they were told by their employer.