Donna Lenhoff served as senior civil rights adviser in the Labor Department's Office of Federal Contract Compliance Programs in the Obama administration.
Over the past few months, the #MeToo movement has exposed an epidemic of sexual harassment and retaliation in the workplace. But without substantial reforms to our legal system, that movement may be all for naught.
In 1980, the Equal Employment Opportunity Commission declared that workplace harassment — including harassment based on sex, race and national origin — violates Title VII, the federal law against workplace discrimination. In 1986, the Supreme Court ruled that a hostile work environment violated Title VII. In 1991, Congress made compensatory and punitive damages available under Title VII.
What has become all too clear is that those legal mechanisms — designed decades ago to redress and deter harassment and retaliation — are woefully inadequate, for four significant reasons.
First, while the threat of large damages can be effective in getting management to take preventive action, under Title VII, pain-and-suffering and punitive damages combined are capped. The caps begin at $50,000 for employers with between 15 and 100 employees and top out at $300,000 for employers with more than 500 employees. Such amounts are patently insufficient as an incentive to stop harassment and retaliation.
Second, many companies insist that harassment settlements be confidential. While confidential settlements may provide redress for the individuals who filed complaints, they are unlikely to remove harassers from their position or alert co-workers or the public to the problem.
Third, the agencies that enforce Title VII have never had the necessary resources. In fiscal 2016, EEOC received more than 91,000 discrimination charges. That included 28,000 harassment charges, and of those, almost 13,000 charged sex-based harassment. Yet EEOC had only 635 investigators for all private-sector charges. And while the agency has recently improved its charge-intake and investigation processes (including launching an online inquiry system), this resource mismatch continues to allow too many charges to be insufficiently investigated. Between 2016 and 2017, EEOC more than doubled the number of lawsuits alleging all types of harassment and other types of discrimination, but even the 2017 figure totaled only 184.
Fourth, private litigation is quite rare considering the prevalence of workplace harassment. That is because, despite the availability of attorneys' fees when employees prevail, upfront costs of litigation are prohibitive. And many company policies force employees to bring their claims before private arbitrators instead of a court. Generally dependent for their business on the companies that the employees are suing, arbitrators may well tend to side with employers more, and to award lower damages, than juries.
Another main reason litigation is rare is that employees reasonably fear retaliation. Most employees can scarcely afford to risk their salaries, health insurance and careers. True, retaliation is itself prohibited by Title VII. But that prohibition is enforced the same way that the harassment prohibition is enforced and with the same limitations: capped damages, confidential settlements, insufficient EEOC resources and rare litigation.
For all these reasons, fear of Title VII liability does not sufficiently deter companies from ignoring harassment or from retaliating against those who report it. What, then, should we do differently to stop harassment and retaliation?
We must start with measurement and reporting. All workplace rapes and other sexual assaults should be reported to the government, perhaps as part of the Labor Department's annual Survey of Occupational Injuries and Illnesses. Employers should be required to conduct anonymous surveys of their employees on the prevalence and types of harassment and retaliation that they encounter and post the results on their websites.
Then, we must act based on these data. What about joint criminal-civil task forces conducting investigations of every workplace sexual assault reported? Or using the results of the employer surveys to calculate potential liability, which would then be reported to corporate boards and the Securities and Exchange Commission? Limiting eligibility for government contracts and grants to companies with harassment levels below a certain threshold — and retaliation levels below an even lower threshold? Limiting eligibility for stock options and salary increases to chief executives whose companies have harassment and retaliation levels under those thresholds?
We also need more research on effective interventions. Analysis of the Labor Department data on sexual assaults by demographic group, geographic location, industry and other factors could help target government enforcement efforts to harassment-condoning company cultures. Research on interventions that have successfully changed workplace behavior in other contexts could help identify solutions, as well.
Finally, we must address the failures of the current system. This means drastically increasing the EEOC's budget; underwriting private litigation costs; abolishing forced arbitration; restricting settlement confidentiality; and removing the caps on damages. To maintain fairness and confidence in the process, we must also establish proportionate consequences for harassment of different levels of severity.
If we really want to end workplace harassment and retaliation, today's culture change must be backed up with tomorrow's systemic mechanisms for redress and deterrence. Let's harness the energy of the #MeToo moment to get policymakers to adopt concrete, workable policies and make a real difference for workers.