How #MeToo Exposes Our Antiquated Laws: Women Are Not Protected

In many instances over the past year, #MeToo has helped multiple women discover they were abused by the same powerful man, but the victims were unable to file a criminal complaint because the statute of limitations had expired.

High-profile examples include Harvey Weinstein and Bill Cosby. Ginia Bellafante of the New York Times notes that in another high-profile case, that of disgraced former New York Attorney General Eric Schneiderman, the prosecutor just announced that no charges will be filed for domestic violence committed against several women because their cases are all past the statute of limitations. Bellafante explains that there has been pressure on the legal system for some time to expand or eliminate these time frames, but little progress has been made. She notes, “Serial predators will continue to elude punishment, given that the crimes they commit often occur over a period that can span decades. Cases built on one or two recent accusations [like those of Weinstein and Cosby]—ignoring along-term pattern of abuse—easily fall apart.” There is now abundant evidence that the trauma of sexual abuse combined with fear of retribution by powerful abusers often causes assaults to go unreported until well past the statute of limitation allowed by law.

Our laws need updating in other ways as well to hold sexual abusers criminally accountable. For example, Bellafante explains that it was not clear what crimes Schneiderman could be charged with for physically attacking and demeaning aseries of women with whom he was involved:

  • Felony assault requires the demonstration of significant injury, such as a broken limb.
  • Misdemeanor assault requires proof of substantial physical pain but does not include mental anguish.
  • A prosecutor must be able to prove there was intent to cause physical injury, which can be invalidated by claiming that injury resulted from momentary passion or anger but was “not intended.”

In addition, our laws need clarification and expansion to include protocols and standards requiring colleges to call the police to report campus rape and assault. Instead, new rules recently released by Betsy DeVos’s Department of Education protect schools but not students. Dana Bolger explains the following about these rules:

  • They narrow what counts as sexual harassment. The rules require that harassment must be “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” to education. Even a rape may not count as sexual harassment under this standard because a one-time act of violence is “not pervasive.”
  • They only hold schools accountable when they are“deliberately indifferent” to sexual harassment.

We also need to clarify the standards used to hold someone accountable for rape or attempted rape when there are no corroborating witnesses. The deck is stacked against women regardless of how long it takes them to come forward to seek justice for an assault.

Our laws need to change.

Photo courtesy of southernfried (morguefile)

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Why Sexual Harassment in the Workplace Is So Difficult to Stop

Susan Fowler, writing for the New York Times, notes that it is now abundantly clear that sexual harassment is pervasive in every industry. While getting rid of it will not be easy, we now know some facts that will help:

  • We have to stop the practice of forced arbitration as a condition of employment. Forced arbitration takes away our rights to sue in court and can legally bind us to keep silent about what has happened to us. A recent Supreme Court decision confirming that employers can continue this practice means that we need new federal legislation to make this change.
  • We need legislation at the state and federal levels to protect employees.
    • Some progress has been made at the state level in Washington state and California.
    • We need much more progress at the federal level, including new legislation to eliminate forced arbitration as a condition of employment.
Jodi Kantor of the New York Times notes that there exists “giant holes in the federal laws meant to protect women from harassment.” These can come in several different forms:
  • Existing law only covers workplaces with fifteen or more employees.
  • Federal statutes of limitations for filing a claim can be as short as 180 days.
  • Damages can be capped at $300,000.
Kantor goes on to explain that harassment has flourished partly because structures intended to address it or protect against it are missing or broken:
  • Weak laws fail to protect women.
  • Corporate policies and procedures protect the company but not the employees.
  • Secret settlements protect offenders and keep patterns of abuse out of the public eye.
  • Human resources departments focus on protecting organizations from legal liability rather than protecting employees.
  • No consensus exists on how to report a repeat offender who goes from job to job or to address more minor infractions with measures short of suspension or firing.
  • Low wage workers are now more willing to speak up about sexual harassment, but it’s not clear who they should tell.
Even some of the most powerful women in the United States have so far been unable to get protections for congressional staff. All twenty-two female members of the Senate—Republican and Democrat—have pushed for an overhaul of the Congressional Accountability Act of 1995, which provides more protection for members of Congress who are accused of sexual harassment than it does for the victims. #MeToo and #TimesUp are important movements to keep the pressure on for change. We must support and vote for candidates in the upcoming elections, at the state and federal levels, who are committed to passing legislation to protect women. Support candidates who support women.   Photo courtesy of Phil Roeder (CC BY 2.0)]]>

Sexual Harassment: New Research on the Numbers

The #MeToo Movement has surprising momentum and appears to be reshaping our national dialogue and workplace cultures—at last! It seems that every week we read about high profile men (and some women) getting fired for sexual harassment. Almost every organization I work with as a consultant reports firing or disciplining employees in a variety of roles and levels for sexual harassment. Sexual harassment has been in the news at various times in the past, including in 1991 when Anita Hill accused Supreme Court nominee Clarence Thomas of sexual harassment during his Senate confirmation hearing. But we have not been able to grasp the seriousness of the problem as a society, “believe the women” bringing accusations, or undertake research that can help us understand the depth and breadth of the problem. Susan Chira of the New York Times cites Holly Kearl, author of an important new study, as explaining why we must take this problem seriously: “Sexual harassment is a human rights violation—whether it takes place on the sidewalk of a street or in an executive boardroom—because it can cause emotional harm and limit and change harassed persons’ lives.” I can personally attest to that. The #MeToo Movement has provided an outlet for women and men to share their stories and finally be heard. The scope of the problem fueling and sustaining the movement has finally been documented in Kearl’s study. This study asks about a broader range of behaviors in multiple locations, not just in the workplace, over a longer time span and provides a clearer picture of the pervasiveness of this problem than we have had to date. Previous studies had a narrower focus, such as only in the workplace, only about rape or assault, or only during a narrow band of age, and did not give the whole picture. Chira notes that this well-designed study asked a nationally representative sample of one thousand women and one thousand men about verbal harassment, sexual touching, cyber sexual harassment, being followed on the street, genital flashing, and sexual assault in public spaces, in workplaces, in schools, online, and in homes. The findings from this study highlight the extent of this problem:

  • Eighty-one percent of women and 43 percent of men said they had experienced sexual harassment or assault over their lifetimes.
  • Seventy-seven percent of women and 34 percent of men said they had encountered verbal sexual harassment.
  • Fifty-one percent of women and 17 percent of men reported unwelcome sexual touching.
  • Forty-one percent of women and 22 percent of men said they were sexually harassed online.
  • About a third of women and one in ten men reported being physically followed, while 30 percent of women and 12 percent of men experienced genital flashing.
  • Twenty-seven percent of women and 7 percent of men reported sexual assaults.
  • Few differences were found by race or ethnicity among women who reported harassment. Hispanic men reported the most sexual harassment and assault in every category the survey recorded for men.
  • People who reported having a disability were much more likely to experience sexual harassment and assault.
  • Lesbians, bisexuals, and gay men were more likely to experience sexual assault than straight women and men.
Thanks to studies like this one, we can finally have an informed dialogue about the need for strategies to address this problem and stop it from being swept under the rug again. Let’s keep the pressure on for change.   Photo courtesy of Giuseppe Milo (CC BY 2.0)]]>

Sexual Harassment and Gender Discrimination in Silicon Valley: Has There Been Any Real Change?

Several high-profile cases in the news in recent months seem to reflect attitudes about the treatment of women changing for the better in Silicon Valley. These are the most notable examples:

  • Dave McClure, the founder of the start-up incubator 500 Startups, resigned after admitting to sexual harassment. Later investigation revealed that the company had covered up an earlier sexual harassment charge against him by keeping the investigation confidential.
  • Binary Capital imploded after several women lodged sexual harassment charges against Justin Caldbeck.
  • Uber CEO Travis Kalanick resigned after former company engineer Susan Fowler published a blog detailing a history of sexual harassment at Uber.
  • Most recently, Mike Cagney, the CEO of online lending start-up Social Finance (SoFi), has been fired. For a long time, SoFi’s board of trustees turned a blind eye to complaints from employees about Cagney’s inappropriate behavior until multiple employees filed a lawsuit accusing him of sexual harassment and of “empowering other managers to engage in sexual conduct in the workplace.”
These public firings could reflect changing attitudes—but Ellen Pao cautions us against assuming that real change has happened yet. Who is Ellen Pao? Jessica Bennett, writing for the New York Times, explains that Pao forced the door open to reveal sexual harassment and gender discrimination in Silicon Valley technology and venture capital companies when she filed a gender discrimination lawsuit against her employer, the powerful venture firm of Kleiner Perkins Caufield & Byers, in 2012. Her lawsuit claimed that she had not been promoted because of gender discrimination and that she had experienced retaliation for complaining. She produced written performance evaluations and performance reviews that gave her high ratings. Nonetheless, she was passed over for a senior-level promotion because, she was told, she was both too passive and too pushy. She was also told that she was not promoted because she did not speak up enough in meetings and because she was too opinionated in those same meetings. Really? When she complained, she was attacked. While Pao did not win her lawsuit, she blazed a trail for other women who began to come forward and speak out about sexual harassment and gender discrimination in their workplaces. Pao writes that the real movement forward is that women are now speaking out and telling their stories and that women and their male allies are beginning to join together to file lawsuits to force boards to act. Pao cautions, however, that superficial public apologies and one-off public firings do not fix the company cultures that support bad behavior toward women and other underrepresented groups. Pao notes, “Most companies don’t address the great underlying problem: the exclusion of and biases against women, people of color, older employees, disabled people, L.G.B.T.Q. people and many other underrepresented groups.” She suggests that serious culture change will happen only when corporate leadership achieves these five goals:
  • Leaders make hard decisions to hold themselves and their teams accountable for their behavior across all activities in the organization.
  • Leaders are willing to have uncomfortable conversations.
  • Leaders are willing to fire those who are unwilling to be inclusive or respectful.
  • Organizations set measurable diversity and inclusion goals.
  • Leaders are willing to base compensation on hitting those diversity and inclusion goals.
Amber Tamblyn, writing for the New York Times, sums up the experience of many women who have recently spoken out about sexual harassment and gender discrimination: “We are learning that the more we open our mouths, the more we become a choir. And the more we are a choir, the more the tune is forced to change.” Changing biased, discriminatory, and abusive organizational cultures is going to take the whole village. Let’s stay vigilant and keep the pressure on for change.   Image courtesy of businessforward (CC BY 2.0)]]>

Sexual Harassment and the Culture of Masculinity at Fox News, Uber, and in Society

Why is sexual harassment so widespread? Recent headlines reveal sexual harassment scandals at Fox News—against Roger Ailes and Bill O’Reilly—and a long list of technology and financial organizations including Uber and Tesla. Additional offenders play on sports teams at multiple universities. Frank Bruni of the New York Times writes that we need to take a close look at the culture of masculinity in the United States to understand the source and the pervasiveness of sexual harassment. Bruni explains that the US culture of masculinity teaches that a man must be “a force of nature with untamable appetites” for conquering women, bullying opponents, and avoiding domestic chores such as changing diapers. He notes that Donald J. Trump won millions of votes by projecting a classic masculine persona, indicating that a large segment of Americans find this notion of manhood familiar and acceptable. Bruni cites a new study by Promundo, a nonprofit organization promoting gender equity, showing that the messages young men receive today about how to be a man have not changed. For example, in a sample of thirteen hundred American men between the ages of eighteen and thirty, 75 percent said they are supposed to act strong even when they are scared or nervous, 63 percent said that they’re exhorted to seize sex whenever available, and 46 percent said that they’re waved away from household chores. Bruni notes that the results of this study reflect “a constricted concept of manhood that includes aggression, hypersexuality, supreme authority, and utter self-sufficiency,” described by some sociologists as the “man box.” Bruni reflects that the cost to men of living in the “man box” is that these men are “more likely to act out in self-destructive ways such as substance abuse and online bullying.” Condoning a hypermasculine concept of manhood actively damages our society. President Trump currently

  • Surrounds himself with generals
  • Increases the military budget
  • Cuts funding for arts, science, healthcare, and the social safety net
Let’s not forget the message he is sending to men and boys when he defends Bill O’Reilly as “doing nothing wrong” by sexually harassing women. Fox News provides an example of a company culture that affirms hypermasculinity and condones sexual harassment. Emily Steel and Michael S. Schmidt write that the company stood behind O’Reilly for two decades while legally silencing multiple women and quietly paying millions of dollars to settle sexual harassment claims against him—even after dismissing Roger Ailes last summer and vowing “not (to) tolerate behavior that disrespects women.” Fox News continued to tolerate O’Reilly. Two of O’Reilly’s settlements occurred after the dismissal of Ailes, yet Fox didn’t punish O’Reilly. I wrote in a previous article about the ways that organizations like Fox News perpetuate cultures that condone sexual harassment. As long as organizations silence women and allow women’s careers to be ruined while protecting powerful men, sexual harassment will continue unabated. Uber is another example of a masculine culture negatively impacting women, but a glimmer of hope for change appears possible. Farhad Manjoo of the New York Times reports that revelations about the culture of sexism and sexual harassment at Uber were no surprise to women in other Silicon Valley organizations because
  • Sexual harassment is rampant in technology companies
  • The men responsible for sexual harassment are rarely punished
  • Nothing changes because of a deeply entrenched “bro culture,” described by Sam Polk in the New York Times
Manjoo says that Uber’s competition provides a glimmer of hope. He cites Karen Catlin, an advocate for women in the tech industry, who explained that there is a “heightened awareness of the issues women face due to misogynistic men” since the Women’s March in January 2017. The March marshalled grassroots social media energy to pressure Uber to change (#deleteUber). Uber lost many customers to competitors because of this pressure. Certain key investors have declared their intention to hold Uber accountable for change. Manjoo writes, “It could take years of careful and publicly embarrassing actions for Uber and other companies to become more hospitable to women.” Note the key concept here: publicly embarrassing actions. Transparency and accountability are essential. We must eliminate nondisclosure forms that silence women and prevent accountability. Maybe Uber will lead the way in creating a corporate culture more hospitable to women. Unfortunately, this is not likely to happen at Fox News.   Photo courtesy of futureatlas.com/blog. CC by 2.0]]>

Stopping Harassment in the Legal Profession: The ABA Takes a Stand

The American Bar Association (ABA) recently passed national standards that prohibit harassment of opposing counsel, witnesses, coworkers, court personnel, and others in the course of practicing law. Elizabeth Olson of the New York Times reports that according to the new standards, “harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct” based on race, religion, sex, disability, age, sexual orientation, or marital or economic status. In a separate article, Olson explains that harassment has long been intentionally used in the legal profession to intimidate or fluster opposing counsel and witnesses as well as to reinforce male-dominated attitudes in the legal profession.  She reports that a recent ABA study found that “stereotypical sexist remarks to female lawyers contribute to their underrepresentation in the legal field.” The study also revealed these statistics:

  • Only 18 percent of partners at top law firms are women.
  • In civil cases, men are three times more likely than women to appear as lead counsel and trial attorneys.
  • In criminal law, men are four times more likely to appear as trial attorneys.
Female lawyers explain that they usually try to ignore sexist and racist comments “for fear of imperiling their careers or being labeled less than a team player”—until they can’t anymore and leave the profession.  These are real concerns, and change will only happen if both male and female lawyers and judges hold offending attorneys accountable with the fines and penalties, such as disbarment, now possible when complaints are made and investigated. The National Association of Female Lawyers, the ABA, and individual male and female attorneys and judges have shown courage and determination in pushing for these national standards.  Let’s celebrate a step in the right direction that has a chance to make the legal profession more welcoming and inclusive for its nondominant members, and the courtroom a place where positive standards of professional conduct are on display.   The image in this post is in the public domain courtesy of David Mark.]]>