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Cornell Student Articles on Topical Affairs

Legal processes involving sexual harassment need a relook

The debate on sexual harassment is at an all-time high with the # MeToo and #Time’s Up movement putting the spotlight on an issue that has been an insidious part of the gender equation. Recent months have seen a slew of sexual misconduct stories being unearthed almost every day, begging the question– should the 21st century be witnessing such a status quo on the issue and wasn’t it supposed to get better than worse?

Under federal law, sexual harassment is not a crime, but it is illegal in every state. It is a civil violation and prohibited by the Civil Rights Act of 1964. Before going further, let us first define sexual harassment and sexual assault.

The United States Equal Employment Opportunity Commission (EEOC), a federal agency that enforces laws on discrimination in the work place, defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…”

A 2016 study by EEOC on workplace harassment found that “anywhere from 25% to 85% of women report having experienced sexual harassment in the workplace.” The study further says that it is a persistent problem and is very often under-reported.

With so many high-profile cases of sexual misconduct occupying centre stage, the existent laws are coming under scrutiny and the question being asked is — Does the law help in exposing the abuser or the convoluted legal process helps to bury the problem deeper?

The problems are myriad. The legal process is convoluted and long and going by the statistics available stacked in favour of the accused. Less than 2 percent of job discrimination lawsuits, which include sexual harassment, make it to a jury and only about 4 percent award damages to the complainant

The challenges faced by victims of sexual misconduct and abuse, right from finding appropriate representation by a personal injury lawyer, documented proof, to witnesses and other such elements, are very difficult.

Let us take a look at the hurdles involved in filing a sexual abuse case with the EEOC.

The statute of limitation for filing such a case is 180 days or 300 in some states. By the time most victims gather the courage to speak up, this time limit has been crossed. If a case is filed within the given period, an option of going for an agreement with the employer is granted with a mediator, and the mediation has to be confidential and the settlement may or may not involve money.

If a settlement is not reached or sought, then the EEOC starts gathering evidence, which may take a minimum of 10 months, and in the meantime one has the option to withdraw and settle or withdraw to sue. In 90 percent of the cases the EEOC finds no case to pursue, and in the other 10 percent , the EEOC tries to reach a settlement , which happens in half the cases. If your case is taken up by the EEOC for legal action, then you may get monetary benefits. In some cases, the EEOC allows you to sue and litigate on your own. Once the case reaches a federal court, your chances of getting relief are very low.

Out of the 6,758 sexual harassment claims that the EEOC received in 2016, 23 percent went in favor of employees. In 54 percent of the cases, the EEOC was unable to determine if harassment occurred. In such cases, employees are allowed to sue on their own.

Future career prospects of victims who elect to speak out are also not bright. Human resource personnel are notoriously wary of employing anyone with such a history. This is discounting the social and emotional costs that an individual goes through.

The other lacuna is the non-disclosure agreement and confidentiality clause that most perpetrators use to silence the victims in cases of settlements. Under the National Labor Relations Act, employers cannot prevent workers from talking about sexual harassment or even gender-inequity complaints at work. Non-disclosures are contrary to the Title VII of the Civil Rights Act, which invalidates any such agreement prohibiting employees from filing charges with or assisting the EEOC in its investigation of sexual harassment charges.

Awareness is the panacea to bring about changes in the legal processes employed in sexual harassment charges, which is what the recent high profile cases have brought about.

A “Time’s Up” legal defense fund has been formed by celebrities and activists, and the forum has received more than 1000 requests for aid since its launch on January 1.

President Trump recently signed a bill, Protecting Young Victims from Sexual Abuse and Safe Sport Authorization, in the wake of the Larry Nassar sex abuse scandal. Also, Democratic House members Carolyn Maloney, Ro Khanna , Annie Kuster, Jamie Raskin and Tom Suozzi announced two new bills: Ending Secrecy About Workplace Sexual Harassment Act and the No Tax Deductions for Sexual Harasser Buyouts Act. The bills aim to end the “corporate culture of secrecy” that helps protect workplace sexual harassers.

As an activist pointed out, “Sunlight is the best disinfectant”, and sexual abuse in all walks of life needs this light to bring it out in the open, away from the veil of silence and fear.

Eleanor Smeal, president of the Feminist Majority Foundation, said,“Feminist leaders are building on the strength and bravery of survivors, and this is the start of us moving forward with real solutions.”

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