The public narrative around sexual harassment is changing. In an interview more than two decades ago, for example, David Duchovny characterized sexual harassment claims as “people trying to win the lottery on other people.” According to Duchovny, “people are being sued for millions of dollars because they said ‘Nice ass’ once, jokingly, by the water cooler.”
As employment lawyers, our experience tells us different. To be legally actionable, sexual harassment must be severe or pervasive. Where that standard is met, fear and the threat of workplace retaliation often silences sexual harassment survivors. Indeed, according to a study by the Equal Employment Opportunity Commission, 75% of employees who spoke out against workplace mistreatment suffered some form of retaliation.
The fear that sexual harassment survivors face is rooted in the type of person who they are up against. As employment lawyers, our experience also teaches us that harassers fit a particular profile and exhibit traits consistent with other forms of anti-social behavior. From Harvey Weinstein to Roger Ailes to Bill O’Reilly, an archetype has emerged that highlights the dichotomy between perpetrator and victim.
The positions of power that these particular individuals held for so long coupled with the vast resources at their disposal, allow us to understand why sexual harassment survivors – who typically find themselves in subordinate roles – hesitate to speak up. Complicity, arrogance, and myopia at the corporate level allow harassers to act with impunity and re-offend. Survivors who finally reach their breaking point and muster the courage to report sexual harassment will often be met with a workplace investigation. During this process, which can span several weeks to months, the employee may be placed under a microscope and made to question the decision to report sexual harassment in the first place.
Litigation will pose the biggest challenge and test the strength of even the most resolute of survivors. Ellen Pao’s willingness to speak about her experience going to trial against her former employer, Kleiner Perkins Caufield & Byers, for sexual harassment, gender discrimination, and retaliation provides a candid glimpse.
Make no mistake: bringing a sexual harassment claim is a serious undertaking. We are here for those who seek accountability, who believe in change, and who will allow us to prepare them for the fight ahead.