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McCann and Romomaskovic-Devey: Harassment demands managerial rather than legal solution

By CARLY McCANN and
DONALD TOMOMASKOVIC-DEVEY
Of the University of Massachusetts at Amherst

The #MeToo and #TimesUp movements have brought renewed attention to sexual harassment in the workplace. However, the vast majority of allegations go unreported, and those who do report tend to face troubling outcomes.

Our new research, released Dec. 12, analyzed all sexual harassment complaints filed with the U.S Equal Employment Opportunity Commission or state fair employment agencies between 2012 and 2016. We found that victims rarely report sexual harassment, and those who do tend to face severe retribution with limited redress.

Based on national survey data, we estimate that about 5 million people experience sexual harassment at work every year. On average, however, only 9,200 file a charge with the EEOC or one of its state counterparts. In other words, 99.8 percent of people who experience sexual harassment at work never file a sexual harassment charge.

Most of the charges filed with the EEOC are judged potentially legally actionable initially. This suggests that the vast majority of sexual harassment discrimination charges appear credible, thus meet the high legal bar for a finding of sexual harassment.

Compared to other kinds of discrimination complaints, we find the Equal Employment Opportunity Commission treats charges of sexual harassment quite seriously, and did so even before the #MeToo movement. But on average, only 1,800 filers will receive any redress.

How do employers respond to sexual harassment complaints?

The very low proportion of employees filing complaints is likely a function of employers’ typically punitive responses. In fact, 68 percent of sexual harassment allegations include a charge of employer retaliation.

Almost two-thirds of people who file a charge lose their jobs as a result. Our analysis shows that job loss is somewhat higher among men and white women, and retaliation is somewhat higher for black women.

We do not know whether job loss or retaliation occurred after the target reported the sexual harassment internally in their workplace or after the charge was filed with state or federal authorities. What is clear is that complaining about sexual harassment is quite dangerous, inciting employer retaliation and resulting ultimately in termination in most instances.

This pattern of extreme retribution fits with past research.

Following the advice of legal counsel, employers often react to internal discrimination complaints with aggressive attacks on those who complain. This tactic is designed to isolate the charging party and send a message to other workers that the cost of pursuing legal remedies to discrimination will be prohibitively high.

Are there any benefits to filing a sexual harassment charge?

After the charge is filed, the EEOC has several routes to resolve allegations, any of which can lead to monetary or other benefits for the charging party.
On intake, the EEOC judges 88 percent of sexual harassment charges as plausibly legally actionable. Many of the rest are excluded for administrative reasons, such as late filing. False claims appear to be quite rare.

At the same time, most people who file discrimination charges, including discrimination charges that the EEOC initially judges to be legally actionable, do not receive any benefit. Only about a quarter of people who file sexual harassment charges — and do not withdraw their charge sometime in the process — receive some benefit, most commonly monetary compensation.

High-profile media cases often focus on large monetary settlements for the targets of sexual harassment. For example, Fox News paid former broadcaster Gretchen Carlson $20 million to settle her sexual harassment lawsuit against former Fox News CEO Roger Ailes.

But outcomes for most sexual harassment charges are much smaller. Charging parties who received monetary compensation for being sexual harassed at work were awarded $24,700, on average. About half received less than $10,000.

Big paydays for sexual harassment discrimination charges are vanishingly rare. Only 1 percent of charges resulted in monetary compensation over $100,000.
And only 12 percent of cases result in some agreement to change workplace practices.

So, are harassment claims a legal problem or managerial problem?

Current practices do not appear to serve charging parties well. Most cases appear legally plausible, but do not produce any tangible benefits.

For those who do receive money, the amount is typically meager, even when they lose their job in the process.

We believe the current legal route is unlikely to create safer and less abusive workplaces. Sexual harassment, and perhaps discrimination of all types, might be better addressed by managers treating harassment claims as managerial responsibilities, rather than outsourcing them as legal problems.

Past research suggests that the most effective routes to ending sexual harassment and other forms of discrimination are through getting managers to take ownership.

The EEOC made precisely this recommendation in its 2016 report on harassment. To educate employers as to how to reduce sexual and other forms of harassment at work, the agency has introduced training courses in managerial practices and the creation of respectful workplaces.

We think shifting responsibility from the law to management makes good business, moral and even legal sense.

From The Conversation, an online repository of lay versions of academic research findings found at theconversation.com/us. Used with permission.

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