Mixed Messages on Sexual Harassment — and a Movie Too
Is the problem of sexual harassment getting better or worse? Should women complain to management about it more or less? Are victims better off staying on the job to fight or quitting and moving on? Is there a need for a grassroots NOW campaign to get employers to adopt “Women-Friendly Workplace” pledges or are employers already with the program after over two decades of legal harassment about sexual harassment? Most importantly, should you go see the new movie (loosely) based on an important sexual harassment lawsuit?
You won’t find any easy answers in the materials I’m linking today. But you may find some interesting reading and a movie (perhaps) worth seeing — North Country, starring Charlize Theron.
Worse or Better?
A recent article occasioned by the new movie states the conclusion: “even though more and more companies provide training to prevent sexual harassment, it’s still a problem in the workplace.”
And shall be to some extent, as long as men are men and women are women, and we all live in a sex-saturated pop culture, IMHO.
But what do the stats show?
The article says:
“Sexual harassment is as much of a problem as it was 10 years ago,” said [an] . . . attorney who trains employers on preventing workplace harassment. “It is amazing that men still do this stuff.”
Figures from both the state of Wisconsin and the U.S. Equal Employment Opportunity Commission show there’s been a fairly steady stream of sexual harassment complaints in recent years.
In Wisconsin, employment discrimination cases that have included a sexual harassment allegation have dipped 12 percent, from 358 in 2000 to 315 in 2004, according to the Department of Workforce Development.
Nationwide, the Equal Employment Opportunity Commission received 4,906 complaints in the 2003 fiscal year, down from the peak of 5,332 in fiscal year 2000.
That’s down about 8% nationally and 12% in Wisconsin. Not bad. I wouldn’t call that a “fairly steady stream.” But continuing the quote, watch how it’s further downplayed by the experts:
But that doesn’t necessarily mean there are fewer problems – especially since experts say most people who experience sexual harassment don’t report it to the government or file a suit.
As true in 2000 as in 2003, right? So how does that explain away the decline?
“Based upon our anecdotal experience, in terms of how many people call, I think it’s increased,” said Michael R. Fox, founder of the Fox & Fox law firm in Monona, which specializes in employment-related cases, including the nation’s first sexual harassment case brought by a man, in 1982. It may be, in part, that more people are willing to report harassment than they were years ago.
Hmm. . . . if that’s so, then the decline in the actual incidence of harassment may be more than the 8% or 12% noted above, with some of the progress masked by increased reporting.
“Sex harassment still a problem at work” by Judy Newman (Wisconsin State Journal)
Should Women Complain to Management About Sexual Harassment More or Less?
I raise this question for several reasons. First and foremost, I’m sick of people making a federal case — literally — over mild nonthreatening sexual banter and joking (although it’s good defense attorney business for me). On top of that, I realize that the consequences for an employee who complains are not always benign, and that sometimes the unwanted behavior can be changed or avoided in other ways.
On alternatives to running to management, the Wisconsin State Journal article quoted above also quotes a female business leader expressing the tougher attitude of earlier generations of women:
The best way to handle those situations is to slough them off, to “be resilient,” Robin Wolaner, author of the book “Naked in the Boardroom,” told the Women’s Executive Leadership Summit at UW- Madison last week.
Successful women of her generation “shook off (those) experiences like a golden retriever getting out of the water” and grew stronger and tougher as a result, said Wolaner, 51. “Resilience is way more important than anything else.”
This is problematic advice, though the dog imagery is certainly vivid.
I like that attitude, for less severe harassment. I do believe that as with the teasing and bullying many of us — male and female — encountered as schoolchildren, ignoring the behavior when possible, and directly standing up to it if absolutely necessary, will usually cause the behavior to cease. The perpetrator desires most of all to enjoy the victim’s expressions of discomfort and fear; if that doesn’t materialize the perpetrator will soon stop.
However, if a victim tolerates (ignores) harassment, or tries to deal with it by directly confronting the harasser, and too much time passes without a complaint to management, the victim may be deprived of legal recourse due to the Faragher defense.
And while employers may prefer not to have to deal with frequent harassment complaints, they are better off hearing about them from employees early on than from the EEOC after they have festered for months or years.
Finally, the “thick-skinned” approach just encourages the harasser to search out another, more vulnerable victim.
Stay or Quit?
A Wall Street Journal article discusses the challenges faced by women who find themselves looking for a new job after experiencing sexual harassment:
Sexual harassment at the office can be very traumatic for its victims. Many avoid formally griping to upper management because they fear irreparable career harm, surveys show. Seeking fresh employment after reporting such misconduct can be pretty traumatic, too, even though it’s illegal for a business to spurn a job candidate simply for alleging harassment elsewhere.
Normally, the law expects the employee to stay and fight for their rights. It is extremely tough to claim constructive discharge based on sexual harassment, which adds to a case’s value by allowing recovery of back pay.
But realistically there may be situations in which quitting simply makes more sense. For example, in a small workplace, even if there is no actionable retaliation and the harassment ceases, working with the harasser may be too unpleasant and other job opportunities more attractive.
The WSJ article offers some practical suggestions for seeking work after leaving a harassment situation:
Request a multifaceted exit package, citing your work accomplishments and harrowing ordeal. “A woman who has complained internally about sexual harassment and is leaving her job should not be afraid to ask her employer for things that will help her to transition to new employment, such as severance, outplacement assistance, a mutually agreed reference and introductions to good contacts” . . . .
It’s usually a good idea to avoid detailed discussions with prospective employers about your mistreatment. But greater candor may make sense if you pursue vacancies within your close-knit industry — and risk being blackballed. Hiring managers must know about your “protected activity” before you can prove a retaliatory rejection . . . .
“How to Get a New Job After Sexual Harassment,” by Joann S. Lublin (Wall Street Journal Online)
What about the Movie?
North Country is based on the book “Class Action: The Story of Lois Jenson and the Landmark Case That Changed Sexual Harassment Law,” for sale below.
For the real legal flavor of the case on which book and movie are based, look at the Eighth Circuit opinion that begins with a brief summary of the case’s “long, tortured, and unfortunate history.”
The movie received extremely mixed reviews. Peruse them to your heart’s content (over 100 reviews, sorted from best to worst) at Rotten Tomatoes, a cool movie-review-aggregating site I just discovered.
A great review: “An emotionally-charged drama that showcases another top-notch performance from Theron.”
A lousy review: “North Country is about as subtle as a sledgehammer. It has a MESSAGE! And that message is simply this: men are pigs.”
A review with a great title: “Charlize and the Chauvinist Factory.”
An interview with director Niki Caro, of “Whale Rider” fame.
So will I go see the movie?
Definitely.
Those critics that wrote negative reviews probably do so about most movies.
To me, being involved in harassment cases as a lawyer, this is an opportunity, if an imperfect one, to develop a better sense of the victim’s viewpoint.
Besides, Charlize is a babe!
