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.