OUR PRINCIPLES:
In June 2018, Stanford Law Review Online published the Open Statement on Sexual Harassment From Employment Discrimination Law Scholars, written by Yale Law Professor Vicki Schultz on behalf of the members of Unleash Equality and since signed by scores of renowned law professors from around the United States. The most comprehensive statement of legal and social principles on sexual harassment since the advent of the #MeToo movement, the Open Statement cites up-to-date research and provides an indispensable resource for journalists, policymakers, educators, activists, legal professionals, and citizens interested in harassment. It is reprinted below, along with the names of many law professors with expertise in employment discrimination law who have signed on.
Open Statement On Sexual Harassment From Employment Discrimination Law Scholars
Vicki Schultz
For Law Professors Rachel Arnow-Richman, Ian Ayres, Susan Bisom-Rapp, Tristin Green, Rebecca Lee, Ann McGinley, Angela Onwuachi-Willig, Nicole Porter, Vicki Schultz, and Brian Soucek
INTRODUCTION
We, the undersigned legal scholars and educators with expertise in employment discrimination law, seek to offer a new vision and agenda for eliminating sexual harassment and advancing workplace equality. We are inspired by the #MeToo movement: The courage and sheer number of people who have come forward to report harassment and abuse, the cross-race, cross-class solidarity among activists, the media’s in-depth and sustained coverage, and the public’s willingness to hear and believe so many victims all suggest this is a watershed moment for change.
Inspired by recent events and renewed activism, we wish to contribute to the current momentum by broadening the conversation about the law. We know that law alone cannot create change. Yet we know also that change rarely occurs without the law. For over forty years, employees, activists, educators, and policymakers have looked to the legal system to address sexual harassment in the workplace. These efforts have produced important theories and information, steps forward and setbacks, that yield important lessons for the future. Title VII and other existing laws against discrimination provide an important tool in the fight against sexual harassment, one that will require continued leadership from enforcement agencies. But broader reforms are needed to address the conditions in which harassment flourishes and to make the legal system more responsive to employees. To reduce sexual harassment and move toward a fairer, more inclusive workplace and society for people of all sexes and genders, we offer the following principles and proposals for reform gained from years of working for change within the law.
Ten Principles for Addressing Sexual Harassment
Principle #1: The problem with workplace harassment is sexism, not sexual desire.
In the popular imagination, sexual harassment refers to unwanted sexual advances, usually by powerful male bosses or benefactors against less powerful women. This is an important pattern of harassment, one that reforms must address. But it is crucial to recognize that not all harassment fits this pattern. We must have an informed understanding of what harassment is and why it occurs to know what can be done about it.
Contrary to popular perceptions, harassment is not always sexual in nature; it assumes a variety of nonsexual forms, as discussed below. Nor is it usually perpetrated by bosses or power brokers: Coworkers, customers, and even subordinates all engage in sex-based harassment. In addition, harassment is not always a male-to-female phenomenon. Men harass other men who don’t conform to prescribed images of who “real men” are supposed to be. Gay, lesbian, bisexual, transgender, and other people who defy traditional gender norms are subject to high rates of harassment, including physical assault. Black women and other women of color are especially vulnerable to harassment.
In all these scenarios, the bottom line is that harassment is more about upholding gendered status and identity than it is about expressing sexual desire or sexuality. Harassment provides a way for some men to monopolize prized work roles and to maintain a superior masculine position and sense of self. Women, too, sometimes act to uphold their relative positions. Even where unwanted sexual misconduct occurs, it is typically a telltale sign of broader patterns of discrimination and inequality at work such as sex segregation and gender stereotyping, as explained below.
Principle #1: Proposed reforms.
1.1. Research and education should provide an informed understanding of what harassment is, what forms it takes, what causes harassment, what conditions foster it, and how it is linked to broader patterns of discrimination and inequality, for purposes of raising awareness and determining effective solutions.
1.2. Enforcement agencies, reform efforts, and the news media should also investigate these issues and promote an informed understanding of harassment, clarifying its links to larger forms of discrimination and inequality and raising public awareness.
1.3. Federal, state, and local governmental agencies should consider additional steps to promote an informed understanding of harassment. Institutions of higher education and secondary public schools could, for example, design curricula to teach about workplace and school-based harassment, clarifying the links to broader patterns of discrimination and inequality at work and on campus. The Surgeon General and the Centers for Disease Control and Prevention could designate harassment a public health problem and initiate a broad educational campaign to raise public awareness.
Principle #2: Harassment includes many forms of sexism and abuse, not just sexual misconduct.
Recent reports have focused mostly on unwanted sexual advances, including serious sexual assaults. These acts seriously harm careers and lives. They humiliate victims, brand them as inferiors in the workplace, drive them away from jobs and industries they love, and cause lasting psychological anguish and trauma.
The same is true of many other nonsexual forms of sexism and abuse women experience at work simply because they are women. Patronizing treatment, physical assaults, hostile or ridiculing behavior, social ostracism and exclusion, and work sabotage, for example, are all used to make women feel inferior, just like sexual come-ons. Bosses not only demand sexual favors; they also insist that women serve food or clean up, submit to their angry tirades, or behave or dress in ways that please them. Bosses and coworkers engage in sexual advances and ridicule; they also downplay or take credit for women’s accomplishments, exclude them from meetings and information, undermine their work and reputations, and comment or otherwise convey that women don’t belong. Subordinates, too, deploy nonsexual, as well as more sexual, actions to subvert the authority of female supervisors. Research shows these nonsexual hostilities are far more common than unwanted sexual overtures. Typically, even sexual overtures are accompanied by broader sex-based harassment, revealing that harassment is often less about hooking up than about putting women down.
The law prohibiting workplace harassment now covers all sex-based harassment, sexual and nonsexual. For these reasons, the terms “sex-based” and “sex” harassment are more descriptively accurate than specifically “sexual” harassment, and we sometimes adopt those terms below.
Principle #2: Proposed reforms.
2.1. Harassment policies, trainings, and reforms should cover all conduct that demeans, intimidates, excludes, undermines, or otherwise treats people differently because of sex, rather than focusing narrowly on unwanted sexual advances and other sexual behaviors. Examples should include a wide range of conduct, emphasizing that both sexual and nonsexual forms of harassment can contribute to a hostile work environment based on sex.
2.2. Enforcement efforts, education, research, and media coverage should highlight and address nonsexual as well as sexual forms of harassment, contributing to a broader public understanding of the prevalence and effects of the full spectrum of workplace sexism and abuse.
2.3. Organizations should hold owners, managers, and supervisors accountable for implementing harassment policies and preventing and addressing harassment. These efforts should be linked to broader efforts to achieve equality, inclusion, and fairness, as discussed below.
Principle #3: Sexual harassment is directly linked to sex segregation and inequality.
Reformers who highlight the importance of gender parity are right: Sex segregation and inequality in employment, where men hold most of the top positions or prized jobs in an organization, field, or industry, and women are relegated to lower-status jobs, are a major cause of sex harassment. Research shows that harassment is more prevalent where women work in traditionally male-dominated jobs or settings.
Women’s absence from some jobs and predominance in others fosters gender stereotypes like “men are leaders” and “women aren’t tough enough to lead,” or “men are breadwinners” and “women put their families first”—ideas that make the underlying segregation and inequality seem natural when they are not. These stereotypes foster harassment, encouraging men to view and treat women as “different” and second class. By harassing women who dare to enter traditionally male jobs and roles, or imposing sexist demands that remind women they are still women in a man’s world, men can shore up their masculine status and sense of masculine superiority at work. Harassment in turn reinforces the original segregation and stereotypes by driving women away and confirming ideas that they can’t cut it or don’t belong. Supervisors and organizational leaders often fail to respond or look the other way, completing the cycle.
Segregation not only affects male jobs: Women who work in traditionally female jobs are often at increased risk of harassment and exploitation, too, especially where the jobs require displaying heterosexual sex appeal or performing other stereotypically female roles. Men who work in female-dominated industries and jobs also are sometimes harassed or treated differently by their supervisors or coworkers because of their sex.
Research shows that sex-segregated employment is typically tied to discrimination, not choice. Without the power and safety that comes with equal representation and numbers, women cannot effectively counter stereotypes or deter or resist harassment. Skewed numbers leave women outnumbered and vulnerable at work, left to curry favor with men or compete on an unequal basis. With few women in positions of influence in so many industries, it is little wonder that so little progress in reducing harassment has been made.
Principle #3: Proposed reforms.
3.1. Reducing harassment requires eliminating sex segregation in employment and business settings. Organizations and industries must include women and men in equal numbers in every job at every level, especially in top positions.
3.2. Achieving this goal means ending discrimination in recruiting, hiring, assignment, and promotion, and ensuring that women are paid and valued equally in every role. Leadership and accountability are crucial.
3.3. Harassment policies should be linked to larger plans to eliminate sex discrimination, facilitate full inclusion, and achieve equal numbers of women, men, and gender nonbinary people of all races in all jobs at every level throughout the organization. Both traditionally male-dominated and traditionally female-dominated jobs should be integrated.
3.4. Organizations should hold owners, managers, and supervisors accountable for implementing non-discrimination and equal inclusion plans through measurable goals. Their own career advancement should depend on success in meeting these goals, along with success in preventing and remedying harassment.
3.5. Organizations should use time-honored equal employment opportunity strategies and other creative measures to achieve these goals. Where employing equal numbers of women is not feasible due to women’s present lack of qualifications, for example, employers should take active steps to ensure that women catch up in training or education. Employers should also take active steps to attract women to male-dominated jobs and to ensure that they are welcomed and protected from harassment; they should not accept women’s alleged lack of interest as an excuse for significant underrepresentation. Employers should take similar steps to integrate men equally into mostly-female jobs.
3.6. Federal and state enforcement agencies should bring lawsuits combining challenges to sex-based harassment with challenges to discriminatory practices that lead to sex segregation and inequality, such as discrimination in hiring, promotion, and assignment. These lawsuits can help expose and break the links between harassment and larger patterns of discrimination and stereotyping.
3.7. Reforms should challenge segregation and inequality in their own right and emphasize their contribution to harassment, creating public awareness and generating consensus about the need to integrate organizations and workforces along sex-gender lines in order to prevent and address harassment.
Principle #4: Same-sex harassment and LGBTQ harassment are prohibited sex discrimination, too.
Contrary to popular perception, women are not the only victims of harassment. Men, too, frequently experience sex-based harassment—mostly at the hands of other men. At times, powerful men prey on other men for sexual favors, just as men do upon women. But more often, men harass other men through acts of gender-based hostility—including hostility toward those who don’t live up to images of “real men” prescribed by hegemonic codes of masculinity. Male-on-male harassment is often mistaken for harmless hazing, but it is rooted in gender bias and stereotypes just like male-on-female harassment. Harassment against LGBTQ people is also widespread, with transgender individuals experiencing the highest rates of all.
While the motive for such harassment is rarely sexual desire, the means include both sexual and nonsexual abusive behaviors. City landscapers attack vulnerable teenagers perceived as too soft, gay, or fat to work alongside them, for example, while male lawyers demean male colleagues seen as spending too much time caring for their families. Police officers assault colleagues who stand up for openly gay men or women, and men of all stripes attack, ridicule, and catcall men and boys perceived as effeminate or gay. Lesbians and transgender individuals are severely harassed for violating gendered expectations for those who do the job. By attacking women, LGBTQ people, and heterosexual men who fail to conform to prescribed gender norms, harassers reinforce the masculine composition and character of their jobs and shore up their own sense of masculine identity.
Although female-on-female harassment is less visible than other types, women do sometimes demean and ostracize other women, especially in sex-segregated job settings where they lack power and feel they must compete for favor on stereotypical female terms. Women may also harass, exclude, or stigmatize women perceived as improperly feminine, including open lesbians, in an effort to project a sense of mainstream femininity and to protect it from contamination by pariah femininities.
Because harassment and discrimination against LGBTQ individuals is necessarily rooted in prescriptive stereotypes about the “appropriate” appearance, sexual partners, and/or gender identity for men and women, courts have begun to recognize that sexual orientation and transgender discrimination are forms of sex-based discrimination prohibited by law. Reforms must specifically address harassment based on sex/gender stereotyping, sexual orientation, and gender identity, clarifying that they are all prohibited sex-based harassment and discrimination, regardless of whether the motive or means are sexual in nature or whether the harassment is directed at someone of the opposite or same sex.
Principle #4: Proposed reforms.
4.1. Harassment policies, training, and reforms should cover same-sex harassment and harassment based on sex/gender stereotyping, sexual orientation, and gender identity, regardless of whether the harassment is sexual in nature or is directed at someone who is of the opposite or same sex.
4.2. Federal and state lawmakers, courts, and agencies should clarify that harassment and other discrimination based on sex/gender stereotyping, sexual orientation, and gender identity are prohibited forms of discrimination.
4.3. Enforcement efforts, education and research, and media coverage should highlight and address this point, contributing to a broader public understanding of the prevalence and harms of these forms of harassment.
4.4. Reform efforts should foster solidarity and support for people who face or risk facing these forms of harassment.
Principle #5: Race-based harassment and intersectional race/sex harassment and discrimination against women and men of color must be specifically addressed.
Women and men of color experience higher rates of racial-ethnic harassment than white employees. Women of color also report and experience higher rates of harassment than white women, often on the basis of both sex and race. Men of color may also be more likely than white men to experience gender-based harassment at the hands of other men. In general, people who experience sex-based harassment are more likely to experience racial-ethnic harassment, further suggesting the importance of intersectional analysis pioneered by Black feminists.
Despite the social invisibility of Black women’s distinctive struggles, sexual harassment law has been shaped from the courageous struggles of Black women. From Title VII’s inception, Black women have helped expose and resist unwanted sexual advances, including sexual assault and rape, along with the everyday onslaught of racism and misogyny. (Think of Carmita Wood, Paulette Barnes, Sandra Bundy, Mechelle Vinson, Eleanor Holmes Norton, Anita Hill, and Tarana Burke.)
Black women have been subjected to sexual and labor exploitation for centuries, dating back to slavery. Women of color generally face increased risk of harassment, and enduring, pernicious myths about their sexuality. For example, stereotypes portray Black women as wanton and lascivious, Latinas as sexy and “spicy,” Asian women as exotic and submissive, and Muslim women as meek and oppressed—images that invite unwanted sexual advances at work and elsewhere. Women of color also face persistent nonsexual negative stereotypes, including images of the “angry Black woman” or dangerous Muslim terrorist who refuse to submit to proper (male) authority; Black women are also further stereotyped as unqualified and incompetent. These ideas further foster sex- and race-based harassment and marginalization on the job.
Women of color are also disproportionately clustered in low-paying, unskilled occupations, leaving them further vulnerable to and less able to resist stereotyping and harassment. Immigrants, including many women of color, often lack information about their rights, and undocumented workers fear deportation and reprisal, making them less likely to stand up for themselves or complain. Men of color, too, face pervasive stereotypes and are sometimes targeted for harassment or discrimination because of their race and sex. Queer people of color, often stigmatized as lacking in respectability, may be especially vulnerable to abuse.
Research suggests that women of color have a particularly difficult time proving discrimination under existing law. Reforms must promote policies, plans, and decisions that better protect women and men of color from harassment and discrimination, including intersectional forms.
Principle #5: Proposed reforms.
5.1. Harassment policies, training, and reforms should cover race-based and other types of harassment and discrimination (race, color, religion, national origin, age, and disability, for example, in addition to sex, sexual orientation, sex/gender stereotyping, and gender identity). They should explicitly cover and explain harassment and discrimination that is intersectional (based on more than one factor).
5.2. Harassment policies and training should be linked to larger plans to eliminate race, race/sex, and other forms of intersectional discrimination and to facilitate full and equal inclusion of women and men of all races into all jobs at every level throughout the organization, especially top positions.
5.3. Organizations should hold owners, managers, and supervisors accountable for implementing these specific policies and plans through measurable goals.
5.4. Enforcement efforts, education and research, and media coverage should highlight and address the nature and prevalence of race/sex and other intersectional discrimination.
5.5. Reform efforts should foster solidarity and support for people who face or risk facing race-based, race/sex and other intersectional discrimination.
Principle #6: Broader occupational and other structural vulnerabilities must be reduced.
Many women work in occupations or situations that leave them vulnerable to sex-based harassment and exploitation. Hotel maids and private housekeepers work in isolated locations where they can readily be harassed, for example. Agricultural workers “work in the shadows of society in isolated fields and packinghouses that are out of sight and out of mind” to most people. Waitresses or bartenders who depend on tips may feel compelled to tolerate harassment by customers in order to make a living—and women in these positions are often forced to wear revealing costumes or told to “show more skin” on the job to improve their wages. Assistants who depend on personalistic relationships with executives for career mobility may feel pressured to comply with sexual or other sexist demands from their bosses. Women in the skilled trades who depend on their male coworkers for informal training and teamwork face similar risks.
Even apart from such specialized vulnerabilities, many employees also face a more generalized risk for harassment and abuse—bosses or benefactors who have unchecked, carte blanche authority to make or break the employees’ careers and life prospects based on the higher-ups’ own subjective say-so. Due to sex segregation and inequality, most of these bosses and benefactors are men. The simple truth is that too many men have too much unconstrained institutional power over the women (and men) who depend on them for their livelihoods.
The gendered character of the hierarchy contributes to the problem, but so does the nature of the hierarchy itself. Heading private fiefdoms where they can hire, fire, and direct other people with impunity puts higher-ups in a position to indulge their biases; bosses can impose sexual demands or other sexist behavior on women, demean “lesser” men, and punish those who resist such abuses. Research shows that managers who are given unfettered, discretionary authority over subordinates are more likely to abuse it. The problem is exacerbated when those who occupy such positions are “stars” with high value to the organization. Regardless of their perceived worth to an organization or industry, bosses should not be given unconstrained power to control or direct other people’s careers. Excessive, unchecked discretion not only provides a ready mechanism for discrimination; it also provides a powerful platform for harassment and intimidation.
Time-honored principles from employment discrimination law can help restrain excessively subjective, unconstrained decision-making systems in the name of eliminating discrimination. These principles can and should be mobilized to impose greater objectivity, oversight, and accountability on arbitrary managerial authority. Yet the existing laws against discrimination alone cannot solve this problem; additional measures are needed to incentivize employers and empower workers to make the needed changes.
Principle #6: Proposed reforms.
6.1. Organizations should reduce the occupational, physical, social, legal, sexual, and structural vulnerabilities of employees wherever and whenever possible.
6.2. Organizations should minimize the delegation and use of unchecked, subjective supervisory authority wherever and whenever possible in favor of more open, objective, evenhanded, accountable systems for hiring, firing, evaluating, and directing the work of employees.
6.3. State and federal lawmakers, courts, and agencies should create incentives for organizations to eliminate employee vulnerabilities, curb unchecked supervisory authority, and make other needed changes through antidiscrimination law, labor and employment law, private law, and other means; labor unions should do so through collective bargaining agreements.
6.4. Federal and state employment laws should be amended to require all employers to pay a minimum wage to covered employees without regard to tips or commission, for example, treating customer-based compensation as a bonus and not as a basic living.
6.5. Federal and state antidiscrimination laws should also require organizations to eliminate sex-specific grooming and dress requirements; such requirements foster sex stereotyping and harassment and are almost never necessary to perform essential job functions.
6.6. Enforcement efforts, education, and media coverage should create public awareness of employees’ structural vulnerabilities, encouraging reforms through legislation, litigation, labor and employment contracts, and social activism.
Principle #7: Banning all sexual behavior is not a solution and can even be harmful to the cause of eliminating harassment.
In an effort to avoid legal liability, employers have almost universally adopted written policies that broadly prohibit all sexually-oriented remarks, jokes, and behavior in the workplace, regardless of their purpose or effect; some organizations even ban dating among same-level employees. Such sweeping prohibitions tend to be unhelpful; they can even hinder the cause of eliminating harassment and discrimination at work.
Common sense suggests that not all sexual conversations, invitations, or relationships are discriminatory or harmful; this is why the law requires that harassment be unwanted or unwelcome. Yet policies that ban all sexual talk and conduct permit companies to punish employees for harmless interactions, even where they aren’t linked to sexism or other bias and even where women (or other potential victims of harassment) do not find them unwelcome. Furthermore, research shows that companies sometimes use alleged harassment as a pretext for firing employees for less salutary reasons, such as sexual orientation, race, or age.
Such an overzealous approach to sexual expression invites cynicism and backlash against initiatives to combat harassment. It fails to promote equality for women, while leaving LGBTQ people, men of color, and others who are stereotyped as overly sexual vulnerable to disproportionate punishment and job loss. Labeling all sexual expression harassing without attention to context can also chill interactions among employees and can reduce equality and solidarity by hindering close ties between men and women at work. Fear of being accused of harassment for benign comments or interactions can also encourage higher-ups to exclude or avoid women, further fueling sex-segregated patterns of employment.
Although sexuality is often used as a weapon of sexism, it is important to recognize that sexual talk and behavior are not inherently discriminatory or degrading to women at work. Employees may resort to sexual conversation for many benign purposes, including building solidarity, relieving tension, and staving off anxiety. Indeed, women’s experience of sexual talk or behavior at work may depend importantly on the context—including whether the job setting is sex-segregated or more gender-balanced. In traditionally male-dominated settings, men frequently use sexual (and nonsexual) behavior to intimidate and harass women; it is unsurprising that in these settings, women experience sexual talk and behavior as threatening. In less sex-segregated, more equal settings, however, women may have greater presence and power to shape the workplace culture, including sexual norms. Indeed, evidence suggests that in these settings, women are less likely to experience sexual harassment, and less likely to perceive sexual remarks and behavior they experience as harassing, providing further support for the importance of attending to structural factors such as sex segregation in order to reduce harassment.
Although eliminating sex segregation should reduce harassment, some people may experience harassment even in more gender-integrated, egalitarian organizations; organizations must have well-designed, local policies and practices to address such incidents. To help prevent and detect discriminatory enforcement of harassment policies, it is important to ensure fair and evenhanded investigatory processes for people accused of harassment, as well as for accusers; progressive discipline should be required for all employees. But given that most Americans are at-will employees with no protection against unjust firing, it is unrealistic to rely on fair process alone to combat overly broad prohibitions and pretextual punishments. Reforms should discourage one-size-fits-all, zero-tolerance bans on all sexual expression, and should stress the need for concrete, localized, and holistic plans for achieving full equality, inclusion, and freedom from unwelcome, sex-based harassment for all employees.
Principle #7: Proposed reforms.
7.1. Harassment policies, training, and reforms should refer to all forms of sex-based harassment, rather than focusing narrowly on sexual remarks, jokes, and behaviors.
7.2. Organizations should communicate clearly and honestly about expected behaviors and offenses. Harassment policies and training programs should provide concrete examples and discussions of the circumstances in which sexual remarks, jokes, or behaviors do and do not amount to harassment.
7.3. Organizations should discipline only employees who engage in unwelcome sex-based harassment that negatively affects another employee’s psychological well-being, work performance, employment status, or professional advancement, or that if left unchecked will contribute to a discriminatory work environment.
7.4. Organizations should not prohibit dating or sexual interactions among same-level employees except where necessary to prevent conflicts of interest, in which case nonsexual forms of intimacy, such as close friendships, should also be evaluated for conflicts of interest.
7.5. To ensure fairness and avoid retaliation against complainants, organizations should undertake fair and evenhanded investigations of harassment allegations, should ensure confidentiality to the extent possible, and should use counseling and progressive discipline that is proportionate to the infraction.
7.6. Organizations should permit both accusers and those who are accused of harassment to have an advocate present at any investigatory proceeding, even if they are not members of labor unions or other collective employee representation groups.
7.7. Organizations should refrain from using harassment as a pretext for punishing employees for other reasons. Doing so promotes resistance to anti-harassment initiatives and undermines confidence in the complaint process and the organization.
7.8. Organizations should monitor the results of the complaint process and ensure that findings and punishments are consistent across cases and that some alleged perpetrators are not found to have engaged in harassment more often or be punished more severely than others because of race, national origin, sexual orientation, age, or other discriminatory factors.
7.9. Reform efforts should promote unionization and other forms of collective employee representation as methods to safeguard fair investigations, to secure rights for both accusers and accused to have advocates present, to protect the accused from wrongful or pretextual firing, and to ensure evenhanded, progressive, and proportionate discipline.
7.10. Eliminating segregation and ensuring equality for women of all racial and ethnic backgrounds should remain an independent goal aimed at reducing harassment. Not only does equal inclusion provide women the strength and safety to counter stereotypes and resist harassment; it also empowers them to participate effectively in crafting non-sexist workplace cultures and in establishing appropriate sexual norms.
Principle #8: Protection against retaliation for victims of harassment and people who stand up for them must be strengthened.
Eliminating sexual harassment requires solidarity with victims. Harassment can be eliminated only if people who are harassed are safe in coming forward and if other people can safely stand up for them.
To end harassment, organizations must create cultures of equal inclusion and respect; leaders set the tone and example. Managers can provide time, money, and organizational resources to prevent harassment, investigate complaints fairly, monitor results, and establish a climate of respect for all employees. They can also desegregate along sex and gender lines and create structural conditions in which equality and respect can flourish.
But addressing harassment is too important to be left to management alone. Employees have a vital stake and role to play in creating nondiscriminatory workplace cultures and ensuring inclusion for everyone. Politicians, reporters, educators, activists, shareholders, consumers, and ordinary citizens can also stand up for victims—and for what is right—across traditional boundaries of sex, gender, sexual orientation, race, national origin, and occupational status.
Past and present reports provide inspiring examples of this solidarity. During the civil rights era, a Spanish-surnamed medical employee in Houston, Texas claimed her work environment was hostile and discriminatory because her employer racially segregated Black patients. Two decades later, white male police officers in Richmond, Virginia filed suit when they were punished for protesting mistreatment of white and Black female officers by a higher-up. Today, prominent Hollywood actors and poor Latina farmworkers who face harassment stand up for each other.
The legal system should provide robust protection from retaliation for victims of harassment and the allies who support them. But it does not. Research shows that most people who experience harassment do not report it, largely because they fear retaliation—and with good reason. The law fails to protect employees from retaliation in several respects, including the following important ways.
First, anti-retaliation law fails to protect employees when they object to perceived harassment that does not yet rise to the level of severity or pervasiveness a “reasonable” person would find hostile and abusive. This requirement creates a stark dilemma for victims: They must report acts of harassment to their employers within a short time frame in order preserve the right to sue, but they must not report before the acts have become sufficiently severe or pervasive to be deemed legally actionable. Negotiating this terrain requires an acumen lacked by many lawyers, let alone by the ordinary employees the law is supposed to protect. It is little wonder that few victims complain. Discouraging victims from reporting not only robs them of relief; it also deprives employers and society of the victims’ view of what harassment is and how law and policy should address it.
In addition, the courts fail to protect employees from many common forms of retaliation by employers, holding that these acts are not “materially adverse” actions that would dissuade a reasonable person from reporting harassment or discrimination. Judges have held that disciplinary actions, reprimands, negative performance evaluations, changes in schedule and work assignments, paid suspensions, and even acts of shunning and ostracization do not constitute actionable retaliation, despite evidence that such actions would deter most people from complaining.
The courts also fail victims by holding them to impossible standards for proving their employers retaliated “because” they complained about harassment or discrimination. Employees must show that their complaints were the but-for cause, and not simply one reason, for the retaliation; this standard allows employers to prevail by proving that they may have taken additional, non-retaliatory factors into account before acting. Furthermore, to prove causation through temporal proximity—the only evidence most plaintiffs will ever have—the retaliation must follow very closely on the heels of known complaints. Smart employers can evade liability by waiting patiently before acting, documenting problems with the employee’s record, and taking punitive actions short of firing. Much of the time, employers do not even need to actually retaliate to deter complaints: “Retaliation performs most of its work simply by being threatened (explicitly or implicitly).”
All these problems, and more, confront allies who wish to stand up for victims of harassment or discrimination. The law does not adequately protect employees who object to harassment or discrimination against customers or other non-employees, for example, or employees who object to carrying out a discriminatory order in the future. Nor does the law consistently recognize that employees punished for opposing mistreatment of people of a different race or sex are themselves victims, not beneficiaries, of intergroup discrimination. To end harassment, the law should not only protect, but also actively encourage, managers and employees to identify and stand with people who are experiencing harassment and discrimination. Without empowering victims and their allies to protest perceived wrongdoing, there is no way to eliminate harassment or to move the law forward.
Principle #8: Proposed reforms.
8.1. Retaliation should be defined broadly to include any adverse action an employee believes in good faith is detrimental. Courts should not second-guess employees, the people who are most familiar with and most affected by workplace power dynamics.
8.2. Organizations should protect from retaliation all employees who allege, oppose, report, complain about, resist, or participate in a process investigating an incident of subjectively perceived harassment or discrimination, provided that the employee has a good faith belief that the conduct violates the law and regardless of whether it may reasonably be believed to do so.
8.3. Organizations should also protect from retaliation all employees who support, defend, associate with, or resist taking adverse actions against people who allege, oppose, report, complain about, resist, or experience harassment or discrimination by a member, customer, or other stakeholder of the organization. This protection should be given regardless of whether the supporters are managers, supervisors, coworkers, or subordinates of the victims, and regardless of whether the victims share the sex, race, or other group-based affiliation of those whom they support.
8.4. Organizations should not permit retaliation to be a motivating factor in decision-making about employees and should hold all managers, supervisors, and employees accountable for retaliation even where it is not a but-for cause of any negative decision.
8.5. Lawmakers, courts, and agencies should strengthen federal and state antidiscrimination laws to require organizations to offer these protections.
8.6. To encourage greater support for victims of harassment and discrimination, organizations should consider experimenting with and documenting results from bystander intervention programs, which are designed to give employees the tools to intervene when they witness harassment or discrimination against coworkers, and which may hold promise for altering patterns of complicity and acquiescence in wrongdoing.
Principle #9: Victims of harassment should have the same recourse to the legal system as other victims of discrimination.
Sexual harassment is a form of discrimination, and it should be treated the same as other types of discrimination under the law. But it is often treated differently, to the detriment of harassment victims.
The most glaring exception involves legal liability for employers. In all other discrimination lawsuits, when a supervisor discriminates in making an employment decision such as hiring, firing, promoting, or paying employees, the law imposes strict liability on the employer; this means the employer cannot escape responsibility for the supervisor’s discrimination even if higher-ups did not know about it and had no reason to know. Victims can go straight to the EEOC (or comparable state agency) and file a charge of discrimination, and then file suit without first complaining to the employer. Strict liability pressures employers to monitor for and prevent discrimination before it occurs, and to address it afterward. Without it, the law would have made little progress toward eliminating discrimination.
The rules for sexual harassment are different. Even though hostile work environment harassment is simply a form of discrimination in the terms and conditions of employment, the Supreme Court has said employers do not face the usual strict liability for this type of harassment. If the harassment does not lead to a concrete employment decision, such as firing or demotion, victims of hostile work environment harassment cannot complain directly to an agency and court; they must first report the harassment to the employer through its internal complaint process or else risk losing later in court.
There is little evidence that employers’ internal complaint processes do much to stop harassment. They are often created merely to ward off legal liability and are staffed by people who face pressure to resolve complaints quickly with little disruption to the organization. Even when they work well to resolve individual complaints, these processes cannot really prevent harassment. They only respond to problems that are already occurring, and they do not address the broader workplace conditions that foster harassment in the first place. They also place the onus of managing harassment on individual victims, who for many reasons are often reluctant to report harassment. For these reasons, it is unsurprising that evidence suggests such measures have not worked to reduce harassment. Ultimately, requiring victims to report harassment through internal complaint processes discourages them from challenging harassment at all, because many victims fear reprisal from harassers, higher-ups, and unsympathetic coworkers who may learn about their complaints through the company grapevine.
In addition to imposing more stringent complaint requirements and employer liability rules on harassment victims, the law also requires them to prove elements that are not required of other employees who experience discrimination. While all complainants must show that the alleged discrimination was based on sex, only hostile work environment harassment victims must prove that the conduct was sufficiently “severe or pervasive” that a reasonable person would find that it created an intimidating, hostile, or abusive work environment. The courts have set an unduly high bar for meeting this standard that prevents many victims from having their day in court, let alone winning. Judges have also turned a blind eye to sexism, refusing to find that harassment is “because of sex” when it is clearly driven by sexism and stereotyping. These barriers are unacceptable. So long as harassment makes it more difficult for people to do their work because of their sex or gender, it should be prohibited just like all other forms of discrimination.
It is unfair and unwise to subject harassment cases to more onerous legal rules than other forms of discrimination. Doing so not only harms harassment victims: Eventually, it harms everyone, as the courts inevitably borrow and apply the special rules created for harassment to limit protections for employees in other areas of discrimination law. All victims of harassment and discrimination should have recourse to the legal system on equal, accessible terms.
Principle #9: Proposed reforms.
9.1. Congress should amend Title VII to override Supreme Court decisions imposing different rules for establishing employer liability for hostile work environment harassment than those that apply to other forms of discrimination.
9.2. State lawmakers, courts, and agencies should clarify that hostile work environment harassment is subject to strict liability on the same terms as other forms of discrimination.
9.3. Through these and other pronouncements, federal and state law should clarify that internal complaint processes for harassment and discrimination are voluntary, not mandatory. Victims should not be required to use them before filing an agency complaint or lawsuit.
9.4. Research should investigate the best ways to design and implement internal complaint processes for purposes of encouraging victims to report harassment and discrimination and incentivizing companies to address these problems effectively, recognizing that these processes are no substitute for more proactive measures to prevent harassment and discrimination.
9.5. Organizations should offer complainants a choice among multiple processes (formal and informal), among multiple complaint handlers in different positions (immediate supervisor, others in the chain of command, human resources manager, ombudsman, employee-assistance counselor, anonymous hotline operator), and should ensure diverse representation among complaint handlers and decision-makers.
9.6. Federal and state lawmakers, courts, and agencies should adopt a standard for proving hostile work environment harassment that comports with common understanding: So long as the harassment makes it more difficult for people to do their work because of their sex or gender, it is discrimination in the terms and conditions of employment prohibited by law.
9.7. Enforcement, education, media coverage, and reform efforts should call attention to these limitations and work to create public awareness and political consensus for change.
Principle #10: Prevention and remedies must move beyond punishing individual wrongdoers to encourage systemic institutional change.
Harassment is a large-scale problem; it requires bold solutions. Organizations should hold individual harassers accountable for their actions, as discussed above. But allowing serious harassers to resign quietly does not do anything to prevent them from causing harm elsewhere. Even publicly firing them fails to remedy the career and personal setbacks suffered by the victims—or to prevent similar harassment from recurring in the future. Eventually, other harassers will take their place unless the underlying conditions and cultures that fostered the harassment in the first place are changed. Harassment cannot be eliminated by rooting out individual harassers one by one.
To move beyond the status quo requires moving beyond individual solutions to approaches that hold institutions accountable for systemic harassment and its sources. We urge combining claims of hostile work environment harassment with class-wide claims of discrimination in recruiting, hiring, assignment, and promotion, for example, as a way to challenge sex segregation and harassment, expose the links between them, and obtain remedies to deal with both problems simultaneously. Such challenges can be made inside and outside the legal system, appealing to ideals of equality and fairness while seeking justice in many arenas.
Inside the legal system, recent Supreme Court decisions make it difficult to seek justice along these lines; in a society governed by the rule of law, these decisions cannot be allowed to stand. The Court has cut back on the availability of Title VII class actions, for example, and upheld mandatory arbitration agreements for discrimination claims. The Court has even upheld mandatory arbitration agreements that bar class-wide claims and collective actions, despite the fact that many employees lack any realistic ability to decline to enter into such agreements. These decisions force employees into private arbitration forums that tend to favor employers and prevent people from joining with their coworkers to challenge injustices together. Not only do such decisions limit access to justice for employees who have experienced harassment and discrimination; even enforcement agencies are hindered in obtaining meaningful reforms when the courts treat harassment as a problem of individual bad actors, rather than as a product of the broader workplace structures and environments in which those individuals work and interact.
To make matters worse, many employees are not covered by the laws that might help them. People who work for small businesses are not protected by most federal or state antidiscrimination laws, for example; the same is true for unpaid interns and volunteers. Contract workers are not covered by antidiscrimination or other employment laws at all, even though they constitute a growing share of the economy. Nor are people involved in business relationships other than employment, such as founders and investors, members of boards of directors, or customers or consumers, typically protected by the relevant laws. Even for people who are covered by the laws, a variety of barriers remain. Many employees are asked to sign nondisclosure agreements forbidding them from disclosing anything about the company or saying anything that would portray the company or its executives in a negative light. Short statutes of limitations prevent others from suing. For those who can sue, Title VII imposes limits on damages, making it difficult for middle-class and low-wage earners who experience sexual harassment or sex discrimination to find lawyers to help them vindicate their claims. These are only a few of the problems that stand in the way of individual justice and legal reform. State laws have a leading role to play in solving these problems, but many of the existing laws have limits.
Employees, advocates, policymakers, educators, labor unions, activists, students, and ordinary citizens must think expansively about how to facilitate systemic change to prevent and remedy harassment and discrimination. We must move beyond individual punishment to embrace actions that will alter the structure and culture of our institutions and encourage greater equality, respect, and solidarity among those who inhabit them. Such actions can and should be undertaken inside and outside the legal system, inspired by enduring legal ideals of equality and fairness for all. To facilitate more universal access to the legal system and more systemic change in and through the law, we propose the following reforms.
Principle #10: Proposed reforms.
10.1. Organizations should monitor harassment and discrimination complaints for larger patterns of bias and broader hostile work environments. Responding to individual complaints and resolving them one by one is inadequate where they are part of a broader culture of stereotyping, discrimination, and inequality in the workplace.
10.2. To facilitate more effective enforcement by private litigants, Congress should amend Title VII to allow aggrieved parties to bring class-wide claims.
10.3. Congress should amend Title VII to permit aggrieved parties to bring lawsuits in federal or state courts regardless of any mandatory arbitration agreements and to bring class-wide claims regardless of agreements barring collective actions.
10.4. Congress should amend the Federal Arbitration Act to override decisions interpreting the statute to uphold mandatory arbitration provisions in employment contracts.
10.5. State lawmakers, courts, and agencies should reject decisions cutting back on class actions, upholding mandatory arbitration agreements, and upholding agreements barring class-wide claims and collective action, and should clarify that employees can challenge harassment and discrimination in state courts through individual and class-wide claims.
10.6. Through such pronouncements, federal and state law should clarify that private arbitration for harassment and discrimination claims is voluntary, not mandatory. Victims should not be required to use arbitration before filing an agency complaint or lawsuit.
10.7. To increase employers’ incentives to address harassment and to encourage lawyers to bring claims on behalf of low-wage workers, Congress should amend Title VII to remove or increase the caps on individual damages.
10.8. Awarding money damages alone will not end harassment. Given the link between sex-based harassment and sex segregation, enforcement agencies and private litigants should seek, and courts should order, injunctive relief requiring employers to take affirmative steps to eradicate discrimination and segregation as a remedy in harassment cases. The same is true of race-based and intersectional harassment and segregation.
10.9. To prevent organizations from simply passing on harassment problems to others, federal and state lawmakers and courts should impose legal liability on organizations when they fail to disclose a record of severe, pervasive, or serial harassment in recommending current or former employees to future organizations, and the employee engages in harassment again.
10.10. Federal and state law should restrict the use in standard employment contracts of broad nondisclosure agreements that prohibit employees from revealing information about their companies or executives, enforcing them only where workplace information is directly tied to an employer’s innovative or competitive advantage. The law should also restrict the use of such agreements in the context of settling an employee’s legal claims, enforcing them only where they meet certain requirements designed to permit disclosure of serial harassment or discrimination.
10.11. Federal and state laws should be amended or interpreted to extend to contract workers (and not just employees), unpaid interns and volunteers, employers with small numbers of employees, and organizations and individuals involved in business dealings other than employment, such as investors. The goal should be universal coverage.
10.12. Educators and policymakers should continue research in the social sciences and law to determine which measures are most effective in eliminating harassment and discrimination. Employers should seek out experts to design meaningful measures to reduce harassment in their individual workplaces.
10.13. Harassment should not be further criminalized unless it rises to the level of rape or sexual assault. Criminalization offers an individualized, punitive approach. The way forward is education and systemic change.
CONCLUSION
As scholars of employment discrimination law, we emphasize solutions and remedies that focus on the workplace and business dealings. There is much work to be done in those arenas. Yet it’s clear that biased attitudes begin earlier and exist throughout society. Colleges and universities, vocational technical schools, and post-secondary training programs prepare people for professional life; women and men interact with each other from a young age in school settings. Title VII, Title IX, and other laws guaranteeing equality should be debated and enforced on campuses and in schools, ensuring that young people come of age in institutions that model gender inclusion and equal treatment instead of sex segregation and harassment. Ultimately, all institutions and all people must do their part. There is no substitute for continuing education and activism.
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Signatories
*institutional information listed for identification purposes only
Nadia B. Ahmad, Associate Professor of Law, Barry University School of Law
Ifeoma Ajunwa, Assistant Professor, Cornell University Undustrial and Labor Relations School
Sahar Aziz, Professor of Law, Rutgers University Law School
Rick Bales, Professor of Law, Ohio Northern University
Theresa Beiner, Nadine Baum Distinguished Professor of Law, University of Arkansas Little Rock
Anita Bernstein, Anita and Stuart Subotnick Professor of Law, Brooklyn Law School
Melissa L. Breger, Professor of Law, ALBANY LAW SCHOOL
Beryl Blaustone, Professor of Law, CUNY School of Law
Grace Ganz Blumberg, Distinguished Professor of Law Emerita, UCLA School of Law
Stephanie Bornstein, Associate Professor of Law, University of Florida Levin College of Law
Deborah L. Brake, John E. Murray Faculty Scholar and Professor of Law, Univeristy of Pittsburgh Law School
Erin Buzuvis, Professor of Law, Director of Center for Gender & Sexuality Studies, Western New England University School of Law
June Carbone, Robina Chair of Law, Science and Technology, University of Minnesota Law School
Martha Chamallas, Robert J. Lynn Chair in Law, Moritz College of Law, Ohio State University
Sumi Cho, Professor of Law, DePaul University College of Law
Stephen Clark, Professor of Law, Albany Law School
Jessica Clarke, Professor of Law, Vanderbilt Law School
Ruth Colker, Distinguished University Professor and Heck Faust Memorial Chair in Constitutional Law, Moritz College of Law, Ohio State University
Deborah Dinner, Associate Professor, Emory University School of Law
Dr. Jennifer A. Drobac, R. Bruce Townsend Professor of Law, Indiana University, Robert H. McKinney School of Law
Lauren Edelman, Agnes Roddy Robb Professor of Law, University of California Berkeley Law School
Kathleen Engel, Research Professor, Suffolk University
Katie Eyer, Professor of Law, Rutgers University
Richard Michael Fischl, Professor of Law, Uconn School of Law
Joseph Fishkin, The Marrs McLean Professor in Law, University of Texas Law School
Catherine Fisk, Barbara Nachtried Armstrong Professor of Law, University of California Berkeley Law
Clark Freshman, Professor of Law, UC Hastings College of the Law
Julie Goldscheid, Professor of Law, CUNY School of Law
Michael Green, Professor of Law, Texas A&M University School of Law
Julie A. Greenberg, Professor Emeritus, Thomas Jefferson School of Law
Wendy Greene, Law Professor, Samford University Cumberland School of Law
Joanna Grossman, Ellen K. Solender Endowed Chair in Women and the Law and Professor of Law, SMU Dedman School of Law
Aya Gruber, Professor of Law, University of Colorado Law School
Tanya Hernandez, Archibald R. Murray Professor of Law, Fordham University School of Law
Zachary Herz, Visiting Assistant Professor of Classics, Georgetown University
Jeffrey Hirsch, Geneva Yeargan Rand Distinguished Professor of Law, University of North Carolina
Ann C. Hodges, Professor of Law Emeritus, University of Richmond
Alan Hyde, Distinguished Professor of Law and Sidney Reitman Scholar, Rutgers University Law School
Lisa C. Ikemoto, Martin Luther King, Jr. Professor, UC Davis School of Law, Director, UC Davis Ethics Commons
Margaret E. Johnson, Professor of Law, Co-Director, Center on Applied Feminism, Director, Bronfein Family Law Clinic, University of Baltimore School of Law
Ann Juliano, Professor of Law, Villanova University Charles Widger School of Law
Laura Kessler, Professor of Law, University of Utah, S.J. Quinney College of Law
Jane Korn, Professor of Law, Gonzaga Law School
Minna J. Kotkin, Professor of Law, Brooklyn Law School
Candace Kovacic-Fleischer, Professor of Law Emeritus, Washington College of Law of American University
Zachary Kramer, William H. Pedrick Distinguished Research Scholar, Arizona State University
Sophia Lee, Professor of Law and History, University of Pennsylvania Law School
Nancy Leong, Professor, University of Denver Sturm College of Law
Nancy Levit, Curators’ Distinguished Professor and Edward D. Ellison Professor of Law, UMKC School of Law
Orly Lobel, Don Weckstein Professor of Labor and Employment Law, University of San Diego School of Law
Antoinette Sedillo López, Profesor Emerita, University of New Mexico School of Law
Serena Mayeri, Professor of Law and History, University of Pennsylvania School of Law
Marcia McCormick, Professor, Saint Louis University School of Law
Miranda McGowan, Professor of Law, University of San Diego
M. Isabel Medina, Ferris Family Distinguished Professor of Law, Loyola University New Orleans College of Law
Margaret Montoya, Professor Emerita of Law, Visiting Professor, University of New Mexico
Melissa Murray, Professor of Law, New York University, School of Law
Yxta Maya Murray, Professor of Law, William M. Rains Fellow, Loyola Law School
David Oppenheimer, Clinical Professor of Law, University of California Berkeley Law School
Sachin S. Pandya, Professor of Law, University of Connecticut School of Law
Catherine Powell, Professor of Law, Fordham Law School
Gowri Ramachandran, Professor of Law, Southwestern Law School
Meredith Render, Professor of Law, The University of Alabama School of Law
Deborah L. Rhode, Ernest W. McFarland Professor of Law, Director of the Center on the Legal Profession, Director of the Program in Law and Social Entrepreneurship, Stanford University
Stephen Rich, Professor of Law, USC Gould School of Law
Adam P. Romero, Lecturer-in-Law, UCLA School of Law, Arnold D. Kassoy Scholar of Law, The Williams Institute
Susan Deller Ross, Professor of Law, Georgetown Law School
Merrick T. Rossein, Professor of Law, City University of New York School of Law
Leticia Saucedo, Professor of Law, UC Davis School of Law
Naomi Schoenbaum, Associate Professor of Law, George Washington University Law School
Paul Secunda, Professor of Law, Marquette University Law School
Elaine W. Shoben, Judge Jack & Lulu Lehman Professor Emerita, University of Nevada Las Vegas, Boyd School of Law, Edward W. Cleary Professor Emerita, University of Illinois College of Law
Peggie Smith, Charles F. Nagel Professor of Employment and Labor Law, Washington University at St. Louis Law School
Charles Sullivan, Professor Law, Seton Hall Law School
Franita Tolson, Professor of Law, USC Gould School of Law
Michelle Travis, Professor, University of San Francisco School of Law
Valorie Vojdik, Professor, University of Tennessee – Knoxville College of Law
Lu-in Wang, Professor of Law, University of Pittsburgh School of Law
Danielle Weatherby, Associate Professor of Law, University of Arkansas School of Law
D. Kelly Weisberg, Professor of Law & Director of 3+3 Program, Hastings College of Law, Univ. of California
Marley Weiss, Professor of Law, The University of Maryland Francis King Carey School of Law
Robin West, Frederick J. Haas Professor of Law and Philosophy, Georgetown Law School
Deborah Widiss, Professor of Law, Indiana University Maurer School of Law
David Yamada, Professor of Law, Suffolk University Boston Law School
Deborah Zalesne, Professor of Law, CUNY School of Law
Noah Zatz, Professor of Law, UCLA Law