One reason women are accusing men of sexual harassment in the press, rather than the courts: The legal system that’s thought to investigate, address, and prevent sexual harassment has failed them for decades.
The conclusion from a review of 1,000 above job discrimination cases by two law professors: Sandra Sperino at the University of Cincinnati, and Suja Thomas at the University of Illinois. Sperino and Thomas set out to understand how judges view discrimination cases.
Sexual harassment is illegal in all workplaces and in every state. It's a form of gender discrimination prohibited by the Civil Rights Act of 1964, and it's illegal whether the assumed perpetrator is a person's co-worker or supervisor. But Sperino and Thomas argue that federal court judges frequently dismiss sexual harassment cases that likely meet the requirements under the law.
In the past 40 years, they say federal judges across the country have developed an extremely tapered explanation of what sexual harassment is under the law, and which behaviors create a hostile work environment. Repetitive groping, sexual propositions, and sexualized comments at work usually don't meet that high standard.
"It's shocking," said Sperino. "You read about women being groped or rubbed against a lot at work, and judges don't think that creates a hostile work environment."
The federal courts have repeatedly dismissed women's well-documented claims of sexual harassment at work - the same kinds of alleged actions that have surfaced in media reports in recent weeks.
That helps explain why less than 2 percent of job discrimination lawsuits - a category that includes sexual harassment - make it to a jury, and why only about 4 percent end up awarding damages to victims.
The roadblocks to getting justice start with an unusually complicated and strict process to file a complaint against an employer in the first place.
Employees who think their employer has discriminated against them - including through sexual harassment, which is legally considered sex-based discrimination - have to start by filing a complaint with the US Equal Employment Opportunity Commission, which enforces federal civil rights laws.
Requiring people to go through an administrative agency before filing a lawsuit is highly unusual. In most civil cases, including personal injury or negligence claims, anyone can file a lawsuit in court at any time. Congress also placed a strict time frame on when employees can file job discrimination complaints with the EEOC: no later than 300 days after the alleged discrimination happened. Then the agency has six months to review the case before an employee can sue in court. Once the EEOC gives an employee a Right to Sue notice, they have three months to file a lawsuit.
All through the EEOC's review of the case, the commission investigates and tries to resolve the dispute through mediation. About half the time, investigators are unable to determine if an employer engaged in sexual harassment, and the EEOC notifies workers that they can sue their employer in court. Sometimes the complaints are settled during this process, and sometimes the EEOC will sue the employer in the most serious cases.
In 2016, for example, the EEOC received 6,758 sexual harassment claims, and resolved 23 percent of the cases in favor of employees, adding up to $40 million in relief for workers. In 54 percent of their investigations, EEOC staff was unable to gather enough evidence to determine if harassment occurred. In those cases, employees are given permission to sue in court.
The details of these cases are never made public, unless an employee decides to sue in federal court. And their chances of any success in court are slim.
Even if a case gets to court - meaning that the employee went through the six-month EEOC review process and chooses to sue their employer - federal judges dismiss job discrimination claims at a much higher rate than other civil lawsuits.
Only about four out of 100 job discrimination lawsuits that aren’t settled or voluntarily dismissed end up providing any kind of relief for workers, according to Katie Eyer, a law professor at Rutgers.
This is highly unusual in the world of federal litigation, “exceeding the negative outcomes faced by other litigants in both scope and degree,” she wrote in a 2011 Minnesota Law Review Journal article. In other words, the odds are stacked against victims of discrimination more than victims of medical malpractice or consumer fraud, for example.
The high dismissal rates aren’t for lack of evidence. When deciding whether to dismiss a case through synopsis judgment, a judge needs to determine if a reasonable person would consider the alleged actions to be a violation of the law. More often than not, judges don't think the behavior is bad enough or persistent enough to be illegal.
Through their repetitive dismissals, federal judges have narrowed the definition of illegal sexual harassment so much that a woman (or man) would basically have to accuse her boss of rape to present a clear-cut case of illegal sexual harassment.
The high courts have defined two forms of sexual harassment that are illegal at work. In both, the behavior must be unwelcome to be against the law.
The first is called quid pro quo harassment. In these scenarios, a person in a position of power demands that a subordinate tolerate harassment (like groping and sexual requests) to keep his or her job, or to get a salary raise or other job benefits. These are the most obvious cases and the easiest to prove. It only has to happen once to be illegal.
The second form of illegal harassment is more subjective. It's behavior that is "severe or pervasive" enough to create a hostile work environment for the victim. This is open to interpretation, because there is no definition as to what makes harassment (like groping and sexual requests) severe or pervasive enough to create a hostile work environment. Instead, juries and judges are supposed to consider how often the behavior happened, whether it was physical or verbal, whether the perpetrator was a supervisor, whether more than one person participated, and whether a reasonable person would view the behavior as unpleasant.
The second type of case is the one that federal judges are most likely to dismiss, because they might not think someone's actions are all that bad. And when one judge decides that a co-worker's repeated requests for sex don't count as sexual harassment, and if that dismissal is upheld by an appeals court, it creates a legal rationale for other judges to dismiss similar cases.
This is how federal judges created a high bar for what the courts consider harassment that is "severe and pervasive" enough to create a hostile work environment. If they don't believe that someone’s allegation rises to the level of severity, then they can dismiss a case before it goes to trial.
The federal judges do not believe women's claims meet this standard, said Sperino. This is the main reason so few sexual harassment lawsuits go to trial when they aren't settled beforehand, she says.
Here are a few cases that federal judges have dismissed in recent decades because they didn't believe a reasonable person would consider them bad enough to create a hostile work environment. The dismissals were later upheld by the appellate courts, creating legal precedent for other judges to dismiss similar cases.
These cases have been cited as the legal reasoning for dismissing later lawsuits describing similar behavior.
Sperino calls this a "domino effect" that has led judges across the country to throw out other similar cases. "Judges feel compelled to follow these older cases, even though many cases in the ’90s were probably wrongly decided and haven't aged well," she said.
In 2016, about two-thirds of federal judges at the trial and appellate court level were male. Twenty years ago, when many sexual harassment cases were first heard, the imbalance was even worse.
This is one reason it’s so hard for victims of sexual harassment to get justice. Research shows that a judge's gender plays a significant role in the outcome of sexual harassment cases. A Yale Law Journal article analyzed more than 500 sexual harassment case appeals in 1999, 2000, and 2001 and concluded that plaintiffs were twice as likely to win their appeal when a female judge was on the bench.
Researchers at the University of Minnesota analyzed 62 studies of how women and men view sexual harassment, and found that women were far more likely to consider a broader range of actions as sexual harassment. Women considered groping and recurring requests for dates to fit the label; men were less likely to think so.
Women were also much more likely to consider dating pressure and physical sexual contact as behavior that creates a hostile work environment. This distinction is important. For a plaintiff to prove they were subjected to illegal harassment, they have to persuade a jury that it created a hostile work environment for them. So it makes sense that a male judge would be more likely to dismiss a case for not meeting that standard than a female judge.
Yet federal judges are supposed to define "severe and pervasive" sexual harassment the way a "reasonable person" on the jury would, not the way they might view it. That is such a subjective standard. Different people have different views about what is reasonable, just as men and women have different views about what behavior creates a toxic work environment.
Federal judges, who are appointed by the president, are overwhelmingly white, male, and from privileged backgrounds. On the other hand, juries represent a wider range of American society.
"Because of these differences, it is possible for a jury to believe the discrimination did occur, while a federal judge may think that discrimination may not have occurred. These differences make it even more important for these disputed cases to be left to juries," Sperino and Thomas write.
Juries rarely get that chance. It's no wonder so many women and men have decided instead to tell their experiences to the press in recent weeks - they have no other option. The justice system has failed to give sexual harassment victims their day in court.