November 2, 2017

Address the Silence of a Delayed Harassment Claim

By Dr. Ken Broda-Bahm:

Sexual harassment is a constant issue. But sometimes there is relative silence on the subject, and sometimes there are waves of attention. Right now, one of those waves seems to be cresting. With the repeated harassment claims and settlements at Fox News, and the number of women accusing Hollywood producer Harvey Weinstein — a number now approaching triple-digits and including some very familiar names — the focus of attention is broadening to include many other harassers in the media, politics, the arts, and academics. The attention has spawned a “MeToo” hashtag campaign, with an unprecedented number of women from all walks of life stepping forward to publicly share their experiences as a target of sexual harassment or abuse.

In the workplace, harassment is disturbingly common, with one recent report (Rand, 2017) indicating that nearly one in five say they face a hostile or threatening social environment at work. And always, when people come forward days, years, or even decades after the harassment, the question is, “Why did you wait so long?” But as the high-profile scandals continue to receive attention, and especially as more and more women come forward and share experiences that they did not necessarily report or pursue at the time, I believe that the reasons for the silence are becoming more public, and potentially more understood and accepted. We will need to wait to see if attitudinal data bear this out, but anecdotally at least, the general public is getting a more detailed lesson than it has gotten in the past on why harassment targets are sometimes silent. The issue is broad enough to potentially change the climate for plaintiffs and defendants in workplace harassment claims. In this post, I will look at some of the reasons getting greater attention, and the messages they carry for litigation.

The reasons that most women do not report sexual harassment are coming to the fore, and current events may be helping to establish a context in which delayed reporting becomes more understandable. So, both plaintiffs and defendants should pay attention to the reasons.  Several factors potentially explain a target’s choice to delay reporting.

Perceived Impunity

If the perpetrator is or seems to be unlikely to be punished, then reporting feels like a futile act. In the recent cases, the common factor is that the alleged perpetrator was a very powerful person, and that power served (for awhile at least) as an insulation from charges, making the targets for harassment feel like a public complaint isn’t worth it.

Perceived Isolation

Based on the nature of the offense, targets for harassment and abuse feel ashamed, stigmatized, and alone. After hearing other reports, however, they’re more likely to think, “It really wasn’t only me,” and then the walls come down as more reports come in.

Attention and Blame

Many harassment targets do not want the attention, and are wary about being blamed. According to a 2016 EEOC rep0rt, 75 percent of those women who do come forward feel that they face retaliation for it.   

Threats to Livelihood

Ultimately, women do not speak up because they fear for their ability to work. As Margaret Gardener writes in the Huffington Post, ” It’s distressing. It affects one’s sense of self, but you need the job, you need the money, and until a better opportunity comes along, you endure. You are going to need that person for a reference for your next job. Telling a prospective employer that you left because you were being sexually harassed does not make you an attractive hire.”

Like the cases we are hearing about in the daily news, the harassment claims that find their way to the courts can also involve delayed reports. Rather than treating this as a weakness for the plaintiff to downplay and for the defense to exploit, it is likely that the current conversations will help to turn that delay into a more common and understandable fact about the nature of harassment. Plaintiffs should be more able to explain it, and defendants should be less able to leverage it.

The message from the plaintiff might be something like this:

And you’re likely to ask, “Why did she wait?” The answers, unfortunately, are very common ones. The harasser seemed powerful and immune from responsibility, and as the target for that harassment, she felt isolated and alone. She didn’t want the attention, or the potential blame. And she feared, with some justification, that coming forward could threaten her continued ability to do what she loved. 

Now, even with all that, does she wish she stepped forward earlier? Yes, of course. Especially if that could have spared someone else the abuse or even just made someone else feel less alone. But the simple fact that she didn’t come forward immediately — that isn’t unusual, it isn’t incomprehensible, and it doesn’t mean the harassment was any less real. In a way, it’s a sign that it is even more real. 

Defendants, naturally, will still be able to respond and should still focus on the credibility of the claims, including the facts on how, when, and to whom the claims are reported. But based on recent attention, I believe that defendants should put a little less faith in the idea that reporting delay alone is a good reason to doubt a harassment claim.

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Other Posts on Harassment:

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Image credit: 123rf.com, used under license.

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