In recent months, an increasing number of courageous women and men have come forward to report unwanted and otherwise inappropriate sexual conduct in the workplace and elsewhere. This misconduct has been carried out largely by powerful white men in many areas of public and private life. These dramatic disclosures raise an array of important questions, including why the revelations are happening now and why such pervasive and severe sex harassment and related misconduct continues.
Regarding the first question, the sudden and significant increase in reports of sex harassment by men in powerful positions seems to flow, at least in part, from the fact that a powerful man who bragged on tape about sexually assaulting women has become President of the United States shortly after that bragging came to light. Indeed, the largest protest in the nation’s history – which was led by women – occurred one day after the inauguration of the new President. As written here in an earlier entry, the protest involved millions around the United States, in both big cities and small towns, and in countries across the world. Of course, the concern about retaliation for reporting sex harassment is understandable because there are plenty of examples of employer’s retaliating against those who report. There now appears to be widespread recognition, however, that silence in the face of abuse will not protect the survivors of that abuse in the long run – or promote the broader public interest for that matter.
As to the second question, the persistence of sex harassment and related abuses of power in the workplace results from, among other reasons, failures in the legal system to ensure meaningful transparency and accountability. Regarding transparency, employers often aggressively use protective orders and confidentiality agreements to cloak the litigation and resolution of sex harassment claims in as much secrecy as possible. That secrecy, as recent revelations appear to indicate, has permitted a culture of sex harassment to persist – if not flourish. In addition, the numerous legal defenses and other technical obstacles that courts have embraced mean that valid claims do not necessarily succeed. One of the most common defenses involves an employer’s contention that it somehow did not know about the sex harassment. Indeed, that is precisely what the television network NBC now alleges in response to the disclosures about anchorman Matt Lauer’s highly troubling behavior toward female coworkers.
Despite the legal obstacles, survivors of sex harassment should come forward to seek justice for themselves, which will also benefit their coworkers and the public in general. Only with sustained effort will the culture of sex harassment end once and for all. To create incentives for employees to challenge and employers to prevent the sex harassment that has long afflicted our society, the law enables plaintiffs to obtain extensive remedies when succeeding in a civil rights case of this sort. The remedies include emotional distress damages as well as back pay and benefits – all of which could be trebled under State law – punitive damages, attorney’s fees, and litigation costs paid by employers to plaintiffs.