Tag: sexual harassment in the military

Stopping Sexual Harassment

In the past, this blog has questioned why sexual harassment is not a criminal offense in the United States as it is in France.

Now the U.S. Equal Opportunity Commission (EEOC) has filed a second complaint against a business owner who is  characterized as a “serial” sexual harasser because he paid  $780,000 to five women in 2003 to settle a sexual harassment complaint.

The EEOC alleges that Fred Fuller Oil Company, a Hudson, N.H.-based oil company, violated federal law when  owner Fred Fuller sexually harassed two women, caused the constructive discharge of one, and fired the other.

Fuller allegedly forced Nichole Wilkins to quit in July 2011 after he sexually assaulted her by grabbing and squeezing both her breasts from behind while pinning her against her desk.  The EEOC says this assault was the culmination of a growing number of unwanted and inappropriate sexual comments and incidents of touching by Fuller. 

 Fuller then allegedly created a sexually hostile work environment for Wilkin’s friend and co-worker, Beverly Mulcahey. Shortly after Wilkins notified Fuller in October 2011 that she intended to file an EEOC charge of discrimination, Fuller fired Mulcahey for poor performance.

Déjà Vu

The EEOC sued Fred Fuller Oil Company in 2003 and settled that case in July 2005, winning  $780,000 in relief for five women.  As part of the settlement, the company agreed to undergo training aimed at conforming to Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment.

Markus L. Penzel, trial attorney in the EEOC’s Boston Area Office, said in a press release last month, “The Commission characterized Fred Fuller as a ‘serial sexual harasser’ in its first lawsuit.  Unfortunately, that still seems to be true.”

With sincere respect to Mr. Penzel, it is more than unfortunate that additional women were allegedly targeted by Fuller.  If the EEOC’s complaint is true, these women not only suffered emotional distress but were hounded out of their jobs, resulting in a loss of their financial well-being.

The women who worked for Fred Fuller Oil Co. probably have little in common with  Sherly Sanburg, the billionaire Harvard University graduate and  chief financial officer of Google. She implies in a recent bestselling book that women are partly responsible for their own lack of equality in the workplace. 

The reality is that victims of sexual harassment often are single mothers living paycheck-to-paycheck, with few other employment options, and college students who are trying to earn money to pay their tuition. These women are vulnerable, often not believed, sometimes blamed, almost always powerless and utterly disposable.   

Get Serious!

There’s been a lot of discussion about sexual harassment in the military as a result of publicity surrounding alleged improper sexual conduct of military officers who are responsible for protecting  women from sexual harassment. Surveys show that a third of American women report experiencing sexual harassment in the workplace.

Employers have done far too little to halt sexual harassment and the EEOC lacks the resources to effectively address this problem. 

It appears that Fred Fuller  was not deterred by a monetary fine. He  also did not appear to  benefit from education about what constitutes improper sexual conduct in the workplace or training on  how to comply with Title VII of the Civil Rights Act. What might have deterred Mr. Fuller?

 France’s  Law

France’s General Assembly enacted a new sexual harassment law on July 31, 2012 that includes criminal penalties of up to three years in prison.

New articles in the French Labor Code and the Penal Code state:

“Harassment is the fact of imposing on a person, in a repetitive fashion, statement or behavior of a sexual connation which violate a person’s dignity by virtue of their degrading or humiliating character or create as concerns such person an intimidating, hostile or offensive situation.”

Under the French law, it is considered an “aggravating circumstance” if a perpetrator of workplace sexual harassment is abusing his or her authority.

If Fred Fuller had snatched the purse of his first victim, he would have been lucky to get just a warning.  If he had continued this behavior, he would  have spent time in jail. That’s because stealing a  purse is a crime. 

Shouldn’t it be a crime to steal someone’s peace of mind and financial livelihood?  

Few Consequences for Sexual Harassment

sexual-harassmentUPDATE:  Shortly after this story was written, the U.S. Supreme Court made it more difficult to win a sexual harassment lawsuit by raising the bar for who constitutes a “supervisor” in the workplace – a designation that has important consequences with respect to the employer’s liability. See Vance v. Ball State University.

Sexual harassment in the military underscores a much bigger problem in American society.

 Sexual harassment is a major problem in all workplaces but it is extremely difficult – if not impossible – for victims  to hold abusers accountable for their illegal conduct. Surveys show that third of American women say they have experienced sexual harassment on the job.

For years, women in the military complained that the military did little or nothing about complaints of sexual abuse.  Then two military officers whose duties include preventing sexual harassment and assault were arrested for alleged sexual assaults and the military was forced to confront the issue.

 Defense Secretary Chuck Hagel  recently offered a solution that seems oddly misdirected.  Hagel said that  all of the Pentagon’s sexual assault prevention coordinators and military recruiters will be retrained, re-credentialed and rescreened. But there is no evidence that this is a problem of training; the evidence points to a problem of lack of consequences.

Members of the military who commit sexual harassment and assault have not been held to account by the “employer”  and so it continues. And this is also the problem in the wider society. There is a yawning lack of accountability for perpetrators of sexual abuse and the employers who tolerate this behavior.

Victims in non-military workplaces also complain to supervisors and human resource officers who often do little or nothing to hold the perpetrator accountable.

At that point, the victim’s only  recourse is to file a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) – which is a necessary precursor to filing lawsuit alleging a violation of Title VII of the Civil Rights Act of 1964.  The  EEOC receives about  30,000 sex discrimination complaints a year and, of these,  the agency targets systemic cases involving numerous victims. If the victim’s case doesn’t fit its parameters, the EEOC likely will do nothing but issue a “Right to Sue” letter.  That can take 180 days.  

 Now the victim’s only recourse is to file a lawsuit.  The first hurdle is finding a private attorney willing to take the case.  This can be very difficult for mid- to –low wage earners because there are more than enough high-earner victims with potentially higher damages. The victim also must pay the attorney’s up-front retainer – which in some areas is $25,000 or more.. People like to blame money-grubbing lawyers but legislatures and judges have made these cases very difficult to win and very costly.

 If the case ever gets to court it may be there for only a short time. Federal judges dismiss discrimination cases in the early stages at a much higher rate than other types of cases. If that happens, the victim’s only option is to file a costly appeal.  But if the case is not dismissed, it will take years to wind it way through the system. 

Occasionally one hears of a particularly egregious case of sexual assault that results in a spectacular jury verdict. These are rare.

In short, it is extremely difficult for victims of sexual abuse in the workplace to hold perpetrators accountable for  sexual abuse, not to mention the employers that tolerate abusive work environments. The system screens out all but the most dedicated victims and the most egregious cases. It’s like a lottery that few will win. And that’s a huge part of the problem.

It could get worse
If that’s not bad enough – the situation could get worse.

The  U.S. Supreme Court, the most pro-business Court since WWII,  heard arguments last year on a case that involves who qualifies as a “supervisor” under a federal employment discrimination law. This  question is important because it goes to the issue of damages and whether the employer – rather than the individual abuser –  is liable for the conduct of the abuser.

 The 7th U.S. Circuit Court of Appeals has ruled that only a person with the ability to fire or hire employees can be considered a supervisor,  not managers who supervise workers but cannot fire them. Other federal appeals courts and the EEOC  define a supervisor as a person with authority to direct daily work activities and can undertake or recommend “tangible employment decision affecting employees.”

 The case was brought by Maetta Vance, an African-American catering specialist at Ball State University, who accused a co-worker, Shaundra Davis, of racial harassment and retaliation in 2005. She  claimed the university was liable because Davis was her supervisor. A federal judge dismissed her lawsuit, saying that Davis was not her supervisor because she could not fire Vance. The judge also ruled the university was not liable because it  took corrective action. The 7th Circuit of Appeals upheld that decision, and Vance appealed to the Supreme Court.