Waging War Against Sexual Harassment in the Workplace

#MeToo took the world by storm in 2017.

The hashtag became a mode to support survivors of sexual violence, as well as a battle cry for reform. #MeToo brought workplace sexual harassment to the forefront of the legal stage and forced employers to take actionable steps to end sexual violence.

Title VII of the Civil Rights Act of 1964 prohibits sexual harassment in the workplace. Sexual harassment is a form of sex discrimination where the harasser and the victim can be of any sex. In addition, Title VII holds employers accountable for making efforts to maintain a workplace free from sexual harassment, including stopping harassment once employers are put on notice of its presence.

According to the U.S. Equal Employment Opportunity Commission, an action rises to the level of illegal sexual harassment when “it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision,” such as termination of employment or a demotion.

Outside of the federal directive, some state laws also protect workers from sexual harassment. For example, the California legislature enacted laws more stringent than other state and federal laws to combat workplace sexual harassment. The California Fair Employment and Housing Act forbids sexual harassment in the workplace and affords protection to all workers—including volunteers, independent contractors, and interns.

Under California law, employers must take preventative measures to end sexual harassment. At the very least, employers must have a sexual harassment policy in place.

Other state legislatures are working on strengthening channels of reporting for victims of sexual harassment at work. Lawmakers in states such as Arizona, Rhode Island, and Massachusetts have sought to pass legislation to crack down on the use of non-disclosure agreements in cases of workplace harassment to build better reporting structures.

In this week’s Saturday Seminar, experts consider regulatory improvements that could end sexual harassment in the workplace.

• In an article published in the Boston University Law Review, Stephanie Bornstein of the University of Florida Levin College of Law argues that sexual harassment disclosure requirements, similar to disclosure mechanisms in securities law, could help better enforce workplace antidiscrimination regulations. She recommends requiring pay and promotion disclosure to help close the gender and racial pay gap, as well as harassment-settlement disclosures to change workplace cultures. Bornstein warns, however, of possible drawbacks to these approaches, such as privacy concerns, symbolic compliance, and First Amendment issues.
• Both opponents of sexual violence and proponents of workers’ health fail to use a holistic lens to understand occupational violence, Katherine Lippel of the University of Ottawa posits in an article in the University of Oxford Human Rights Hub Journal. To protect all workers from sexual violence, Lippel recommends legislation for occupational health and safety and workers’ compensation. Lippel suggests that workplaces may marginalize or ignore legislation targeting only violence against women. To avoid that issue, Lippel proposes drafting legislation that protects everyone from workplace violence.
• In an article in The Georgetown Journal of Gender and Law, Rachel Farkas and several coauthors advise attorneys who file or defend a sexual harassment claim to be aware of discrepancies between federal law and state law. Farkas and her coauthors explain that some state laws follow Title VII, but many state laws provide greater protection for people who experience sexual harassment in the workplace. Farkas and her coauthors emphasize how new state laws and court interpretations of sexual harassment in the workplace have expanded protections for people who have a different sexual orientation, gender identity, or gender expression.
• In an article for Columbia Law Review, Daniel Hemel of The University of Chicago Law School and Dorothy Lund of the University of Southern California Gould School of Law argue that corporate law could help remedy sexual misconduct in the workplace. As a way to encourage corporations to take better preventative measures, Hemel and Lund propose filing shareholder lawsuits against corporate fiduciaries who perpetrate sexual harassment. Hemel and Lund explain that holding corporate entities liable for the harassing actions of their employees, even if the law shields defendants from personal liability, will force executives to protect workplace victims more effectively.
• In a forthcoming article in the South Carolina Law Review, Galia Schneebaum of the Harry Radzyner Law School examines workplace anti-bullying regulations and how to clarify the legal framework for workplace bullying and harassment as a legal wrong. She argues that workplace bullying regulations are distinct from sexual harassment regulations because U.S. sexual harassment laws are based on social group discrimination and the Civil Rights Act of 1964. Schneebaum explains how the safety framework, used to minimize bullying as a physical harm, and the dignity framework, which focuses on insult and humiliation, are insufficient to address the contours of workplace bullying. She recommends understanding workplace bullying as “abuse of office.”