Although there are laws in the USA that protect women in their workplace, some women still suffer from sexual harassment mainly due to the insufficiency of the law that should protect them and women in some situations tend to avoid reporting sexual harassment cases.
Introduction
'The glory of justice and the majesty of law are created not just by the constitution - nor by the courts - nor by the lawyers - but by the men and women who constitute our society - who are the protectors of the law as they are themselves protected by the law.'– Robert F. Kennedy. Several decades ago, many laws were issued in the USA which protect both genders, particularly women, from gender discrimination such as Title VII of the Civil Rights Act of 1964. So, why are women still being discriminated against? Hosein (2015) believes that one important reason is due to the “historical mistreatment” of women because of their subordinate position in society (487). Is the law not sufficient enough to protect them in the workplace? Is it well enforced? Although there are laws in the USA that protect women in their workplace, some women still suffer from sexual harassment mainly due to the insufficiency of the law that should protect them and women in some situations tend to avoid reporting sexual harassment cases.
Literature Review
Sexual harassment is any unwelcome and inappropriate behavior that is sexual in nature, which leads its victims into feeling demeaned and degraded. Sexual harassment can occur in any given setting, whether at a school, office, bus or on the streets and a workplace is no exception. Sexual harassment is sometimes inevitable in a workplace where men and women interact. However, employers and corporates should abide by the legal procedures to protect women; to avoid a hostile workplace and to ensure gender equality. Browne (2006) views “sexual harassment through the lens of evolutionary psychology”(146). He claims that this will result in a better understanding of sexual harassment rather than focusing on its “sociocultural” perspective (146). Hemel and Lund (2018) focus on the law’s role in resolving sexual harassment issues and reveal the deficiencies of these laws, specifically Title VII (1583). Schultz (2003), on the other hand, argues that management does not consider if behaviors in sexual contexts are actual threats to gender equality in the workplace. As a result, managers may misemploy sexual harassment policies such as Title VII to control their staff members’ sexual behavior that could be innocuous (2064). Most resources have dissimilar results, which indicate that the law in one way or another needs reforming.
Alexandra Waterbury’s case of sexual harassment
In a case filed to the Supreme Court of the State of New York, Alexandra Waterbury, a former ballerina in the New York City Ballet (N.Y.C.B) filed a case of sexual harassment against the N.Y.C.B and her ex-boyfriend Chase Finlay, a principal dancer at the N.Y.C.B. Finlay had taken nude pictures and videos of her and other female dancers and shared them with other male colleagues in the company in addition to vile text messages that were sent between them. Waterbury alleged that the N.Y.C.B should have been aware of this misconduct because a similar case happened before and no punitive measures were taken for that incident. By dismissing their behavior and actions without any punishment, “N.Y.C.B. signaled to a group of male dancers ‘that they could degrade, demean, mistreat and abuse, assault, and batter women without consequence.’ ” Waterbury’s lawyer, Jordan K. Merson, sought for a settlement as compensation for the damage and humiliation Waterbury’s reputation suffered. However, the company refused to abide by it, and her case seemed to have not been settled until Finlay resigned from the company and two other dancers involved, Ramasar and Catazaro, were fired.
Reasons for the prevalence of sexual harassment in the workplace
Although we are now living in the twenty-first century and this topic has been heavily discussed by many writers, it is still relevant. There are many reasons for its persistence, including the inadequacy of the laws that supposedly provide women with a safe, protected space to voice out their complaints without having to fear the consequences. Moreover, in some cases, women avoid filing lawsuits leaving these incidents unreported and unsettled.
The insufficiency of the laws
Sexual discrimination under the Equal Employment Opportunity Commission (EEOC) is “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” This statement is broad and can allow forms of misinterpretation. One woman might find a sexual joke offensive and therefore classify it as a form of sexual harassment while it might seem like a harmless joke to another. As a result, many writers have contradictory opinions regarding what conforms as sexual harassment and the disciplinary procedures that need to be taken by employers to punish such behavior. Schultz (2003) argues that due to anti-gender discrimination laws, employees are being punished for incidents that are not included in the law such as casual “sexual remarks, teasing, and joking” (2104). This statement is relevant in some cases; however, focus in these situations should be on the victim who does not need to tolerate inappropriate behavior if they find it offensive. While “Diane Gold of EEO Management Solutions [believes that companies need] ‘to go one step beyond the law’ and to be ‘more conservative than the law [demands]’ ” (2101). This approach is the extreme version of the equation which is based on zero tolerance. The multiple opinions regarding what is considered sexual harassment indicate the unclarity of the laws, and therefore, proves their insufficiency. I believe there should be a moderate approach that establishes respectability within the interactions between men and women.
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Furthermore, many writers argue that anti-gender discrimination laws are inadequate. Hemel and Lund (2018) discuss five main shortcomings of Title VII which are, “Capped Damages”; which results in under-compensation that covers limited damages; “180-Day Limitation Period”; which means that employees may lose their cases if they are not filed within the required time limit; “No Individual Liability”; means that employers are not held accountable for such cases if they have less than fifteen employees; “Class Certification”; where employees with similar cases must file individual lawsuits and “Arbitration”; which means that employees cannot take their cases to court and need to resolve them within the company through an arbitrator hired by the employer (1603-1609).
These shortcomings serve as an indirect deterrence that complicates the process of filing a lawsuit. Even those employees who are brave enough to file lawsuits against their employers are taking a risk that will threaten their careers, especially in situations where it is difficult to provide solid evidence to prove their allegations. The lack of awareness regarding certain aspects of the law also plays a significant role in employees losing their cases or not filing them at all.
The avoidance of reporting sexual harassment cases
Many women avoid pressing charges, which is another important reason why sexual harassment is still prevalent. According to the Justice Department analysis of violent crime in 2016, only 23.2% of rape and sexual assault crimes were reported. Furthermore, rape and sexual assault crimes are the least reported in comparison to other crimes such as robbery or domestic violence in that same year (7).
Most women tolerate such assaults for various reasons, including cultural and social factors. Schultz (2003) interviewed Anderson, a consultant who stated that women “may have ‘learned while growing up that [they] must expect and tolerate that type of behavior from men, or that [they don’t] have the right to not be treated that way’ ” (2102). This statement indicates that cultural perceptions regarding women are associated with shame especially concerning sexual assaults because they deal with women's privacy and reputation; therefore, in many situations victims may avoid suing their employer in fear of being publicized. There is also a fear of jeopardizing their careers if they pass charges against their harassers. Waterbury mentioned in an interview with Broadly , that the other female dancers who were exploited did not come forward because as she says: “your voice would actually hurt your career more than it would help it.” Waterbury also mentions that she was terrified to voice her complaint; however, due to the rising of the #MeToo movement , she was given a chance to be heard and taken seriously.
The prevalence of sexual harassment can also be attributed to the position of power the harasser (men) hold in society and within their workplace. Browne (2006) argues that “sexual harassment cases that most conspicuously involve power … are about both power and sex: a supervisor is using his workplace power to extort sexual compliance” (151). This issue was apparent in Waterbury’s case; Finlay was a principal dancer in a prestigious school of dance, he was also Waterbury’s boyfriend and did not need to exploit her or other women for sexual reasons. That is, his motives did not solely revolve around sexual prospects. It was an assertion of dominance because of his higher position in the company, while she was a subordinate dancer. He committed similar offenses before and managed to escape from those situations with minor consequences. The Supreme Court stated that “as a result, the male ballet dancers at NEW YORK CITY BALLET, INC. understood that they were 'above the law' and could do whatever they wanted to women, whenever they wanted to do so.” This is a clear indicator that there is a gap between law and practice. Those in power need to be more aware of the consequences their decisions have on lower-ranking employees. In addition, managers need to place more women in positions of power. This creates an environment of equal opportunities for all employees and decreases the sexual exploitation of women.
The laws both men and women formulate intend to protect them from forms of injustice. Sexual harassment is still pervasive despite there being regulations that ensure such behavior is prohibited in places of work. Two main reasons for its prevalence were discussed. The first is law inadequacy, which plays a major role in the persistence of sexual harassment. Certain laws are not stated clearly, which leads to misinterpretation and conflict. Moreover, several sexual harassment lawsuits are overlooked or dismissed due to the flaws found in anti-gender discrimination laws such as Title VII. The second reason is that most of these cases remain unresolved when the courts are not notified of such offenses. I believe that spreading awareness and campaigns such as the #Me Too Movement are key components to remedy the workplace and create an environment free from sexual harassment.
Work Cited
- Alexandra Waterbury. Complaint and Jury Trial Demanded. New York County Clerk. NYSCEF DOC. NO. 3. Received 18 Sep. 2018. Web. 4 Apr. 2019
- Broadly. “Alexandra Waterbury on Sexual Exploitation in Ballet | The Scarlet Letter Reports.” Online video clip. YouTube. YouTube, 29 Mar. 2019. Web. 4 Apr. 2019
- Browne, Kingsley R. “Sex, Power, and Dominance: The Evolutionary Psychology of Sexual Harassment.” Managerial and Decision Economics 27.2/3 (2006): 145–158. JSTOR. Web. 16 Apr. 2019.
- Hemel, Daniel, and Dorothy S. Lund. “SEXUAL HARASSMENT AND CORPORATE LAW.” Columbia Law Review 118.6 (2018): 1583–1680. JSTOR. Web. 16 Apr. 2019
- HOSEIN, ADAM. “FREEDOM, SEX ROLES, AND ANTI-DISCRIMINATION LAW.” Law and Philosophy 34.5 (2015): 485–517. JSTOR. Web. 21 Mar. 2019.
- Morgan Rachel E. and Grace Kena. U.S. Department of Justice. BJS Statisticians U.S. “Criminal Victimization, 2016 Revised.” Web. 4 May. 2019.
- Schwartz, David S. “When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law.” University of Pennsylvania Law Review 150.6 (2002): 1697–1794. JSTOR. Web. 16 Apr. 2019.
- Schultz, Vicki. “The Sanitized Workplace.” The Yale Law Journal 112.8 (2003): 2061–2193. JSTOR. Web. 21 Mar. 2019. U.S Government Equal Employment Opportunity Commission. “Sexual Harassment” Web. 4 May. 2019.
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