By Joseph A. Seiner, University of South Carolina — The Conversation US — 30 March 2021
Sexual harassment allegations against New York Governor Andrew Cuomo, including at least three from current or former aides, are a reminder of just how commonplace unwanted touching, propositioning and other inappropriate behavior is in the workplace. The author’s research explores the prevalence of toxic work environments and just how startlingly common sexual harassment at work is — and how rarely cases ever see a courtroom.
Research shows that the share of women who experience sexual harassment at work could be as low as 25% or as high as 75%, varying considerably by industry, location and how the question is worded, but generally quite high. This kind of unlawful conduct occurs across all sectors of the economy; recent studies show a high prevalence in the gig economy and the fast-food industry. Among women who have experienced unwanted sexual advances, almost all reported that male harassers usually go unpunished.
Most claims are pursued through civil courts under Title VII of the Civil Rights Act of 1964. But as the Supreme Court has become increasingly conservative, it has added procedural hurdles for all employment discrimination victims. Most notably, in 2007 and 2009 cases, the court articulated a new “plausibility” standard for civil claims that makes it far harder for workplace victims to bring them — particularly problematic since discrimination claims often require a showing of discriminatory intent that is difficult to establish early in a case.
Of the 6,500 to 8,000 sexual harassment cases filed with the Equal Employment Opportunity Commission each year, only about 3% to 6% ever make it to a jury trial. Many cases are dismissed early, settled — often under nondisclosure agreements — or never filed at all. In several reviewed cases, courts dismissed claims for lack of sufficient factual detail: one dismissal involved an allegation that a co-worker had rubbed his genitals against a colleague; another involved a woman instructed not to speak with male workers because she “was a married woman.” Until employers are held to account in court for this type of unlawful harassing conduct, the author argues, there will not be any real relief for thousands of victims.