Here's What Everyone is Getting Wrong About Sexual Harassment at Work

by Tom Spiggle
The Spiggle Law Firm

The stories about Harvey Weinstein’s alleged serial sexual harassment and assault over the years have been stomach-turning, and it’s hard not to feel saddened after reading them. But it’s important to keep things in perspective.

For one thing, the fact that these stories have come out in such a dramatic and potentially career-ending way for Weinstein have sent a message to men in all industries that this behavior is not acceptable and no longer tolerated. Harassers are on notice.

What’s even more important is separating the truths from the misconceptions. There are a few myths that I’ve seen crop up in response to this case, and as an attorney who specializes in employment law, I’d like to dispel:

1. You can’t win a sexual harassment case because the employer has more money. It’s true that sexual harassment cases can be hard to win. The case of Silicon Valley executive Ellen Pao shows that even a woman with a lot of financial resources can end up losing. But it’s also important to count “wins” correctly. If you define winning as getting a successful jury verdict, then the numbers look depressing. But if you define winning as standing up for yourself, pushing back against harassment and negotiating a legal settlement that gives you the money and references you need to move on in your career with your head held high, they look much better. Cases that end with a quiet settlement don’t make the news, but they happen every day. And even if you have to go all the way to trial, there are examples of women who have won major verdicts against employers. (A good place to find a lawyer is www.nela.org.)

2. You need proof to win a case. Many victims worry that their case will end up as a he-said, she-said scenario unless they have some kind of proof that the harassment occurred. It’s true that lawyers like to have corroborating evidence like emails, testimony from other employees and tape recordings. But I’ve won criminal trials, which have an even higher burden of proof, on nothing more than a woman’s testimony. Solid first-person testimony is as strong as evidence gets, even if it doesn’t have corroboration.

3. If you sue, you’ll never work again in your industry. Victims often worry that reporting harassment will end their careers. It’s certainly true that in some cases this can be a concern, such as when the person involved is a powerhouse in the industry. But while Weinstein had some of that power, most of the harassers who face lawsuits don’t. For instance, if you work at a big-box store and the assistant manager makes really inappropriate sexual remarks at you or touches you without consent, reporting him is not going to end your career, or likely affect it much at all.

Sure, he might be able to push you off your preferred schedule, but corporate bosses are likely to squash him like a bug if you report what he's doing. And he's not going to have any say at all if you leave for a better job. This is usually true even if you work for a large company and the harasser is a high-level executive. Yes, he might ruin your chances for advancement within the company, but he likely doesn't have much more influence than that. Moreover, again, unless the harasser is extraordinarily powerful, he's likely not going to want to try to freeze you out of an industry because a public charge of harassment could hurt his career, too.

4. Human resources won’t help you. Many harassers’ friends warn them not to report to human resources because they won’t help you. This is sadly true, to a point. Many, but not all, HR reps either actively will work to protect the company, or, even if they want to do the right thing, lack power to affect the C-suite crowd. As happened with the Weinstein case, sometimes reporting to HR simply results in the complaint ending up on the harasser's desk. And what do you think happens then? Still, there are times when the company will do the right thing. It's happened rarely with our clients, but it sometimes happens that upper management will step in, fire the harasser and apologize for what you went through.

What should you do? Report regardless of what you think might happen. If the company has good management, it gives them the chance to fix something they might not be aware of. If not, reporting will give you extra protection under anti-retaliation law — protection you don't get unless you report the wrongdoing. Retaliation cases are often easier to win than the underlying discrimination cases. Regardless, it is ideal that you talk to a lawyer first. If things get ugly you're going to need someone in your corner.

5. You can’t afford to sue. It is certainly true that hiring a lawyer can be expensive. But many will work on contingency — which means they only get paid if you get a settlement or win at trial. Even if you can't find a lawyer willing to work on that basis, paying for a lawyer to advise you behind the scenes and negotiate a settlement does not involve the same expense as saddling up and heading off to federal court.

6. The only thing you can do is hire a lawyer. Hiring an attorney is an option, but it’s not the only one. Don't forget criminal law. Unwanted touching of any kind is a criminal offense in most states. When I was a sex offense prosecutor, we prosecuted cases that involved, for instance, a single butt grab. If the sexual harassment involves unwanted sexual contact, you should consider going to the police. If you are unsure you want to go that direction, again, talk with a private lawyer. He or she can help you navigate contacting the police, but know this will not involve cops showing up at your office, guns drawn. It usually involves talking to a prosecutor or a detective first.

Sexual harassment is hard enough to deal with as it is, hearing these myths and misconceptions only makes it more difficult to address. As we move ahead in the post-Weinstein world, it’s important that people understand the facts about fighting sexual harassment in the workplace and know there are ways to address inappropriate behavior and penalize offenders. iBi

Tom Spiggle is author of the book You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace, and founder of the Spiggle Law Firm. To learn more, visit spigglelaw.com.

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