Donald Trump's Libel Threat Shows How Women Who Report Harassment Face Retaliation

Donald Trump’s threat to bring libel suits against women who claimed he sexually harassed them received a lot of attention over concerns about how this would affect freedom of the press. Less attention was paid to how this shows how women who report sexual harassment and even assault are at risk of retaliation.

It is not uncommon for women who report sexual harassment to end up in the crosshairs. They may even end up being harassed more. They can face criticism on the job for complaining, be left out of meetings and other work activities or even lose their jobs.

Title VII prohibits discrimination on the basis of sex, so claims for sexual harassment are often brought under Title VII (or similar state/local laws); to prevail the plaintiff must prove that the harassment occurred because of her/his sex. Title VII also prohibits retaliation for reporting discrimination. This means that, if a woman makes a report about sexual harassment, it is considered illegal for her employer to punishes her in any way for making that report.

According to the EEOC for fiscal year 2014, workplace retaliation was the highest it has ever recorded―this includes retaliation for all claims―with 42.8 percent of complaints alleging some form of retaliation against an employee for pursuing discrimination claims

Sexual harassment is a form of discrimination, and the law does offer protections for women who report it. However, these protections can only extend so far. Anti- discrimination laws keep an employer from retaliating against an employee for making a sexual harassment complaint. But keep in mind that those same laws bar harassment in the first place, and yet it still happens.

What’s more, the workplace laws against retaliation do little to protect women from more widespread retaliation. Title VII and similar state/local laws are designed to protect women from retaliation by their supervisors and coworkers. But these laws don’t reach those individuals who are not connected with the woman’s employers. Sometimes a woman’s complaints about sexual harassment become public and the fallout can be brutal. A woman may find her credibility in question. She may be asked why it took her so long to report the harassment. Or there may be suggestions that a woman consented to or even invited the harassment somehow.

Retaliation can take many forms. When Fox News anchor Gretchen Carlson filed a lawsuit alleging that her boss, Roger Ailes, had sexually harassed her, his lawyers

responded by arguing that she was the one guilty of retaliation. Their claim was that she was filed the suit as revenge after the network failed to renew her contract due to low ratings. This public statement was clearly designed to damage Carlson’s reputation by making her seem vindictive as well as arguing that she was bad at her job. (Fox News’ parent company later settled the case for $20 million.)

Women who report sexual harassment, particularly those who make claims against those who are not their employers, may even end up having to defend themselves against formal legal actions brought by their harassers.

Defamation and libel laws are designed to protect individuals from others making false statements about them. But these laws have also been used as a powerful tool to discourage women from reporting sexual harassment.

The problem is that libel law can be used by the powerful to essentially force a woman to “prove” that she is telling the truth. That raises the bar for speaking out in the first place, as women realize that they not only have to win the case to punish their harasser, but also to prevent themselves from facing retaliation. This tactic is contrary to the spirit of anti- discrimination laws such as Title VII which provide that, even if a report of discrimination is determined to be unfounded, the person making a complaint still cannot be retaliated against.

That’s simply too high a bar for many women, who end up not coming forward despite clear-cut examples of harassment. That in turn encourages their harassers to continue mistreating other women and it leads the public to underestimate how much of a problem sexual harassment really is. In Trump’s case, he may never follow through on his threats to sue, but he’s already made his accusers feel anxious and stressed and sent a chilling message to other potential accusers.

Libel law is an important tool for people to protect their own reputations, but in the wrong hands it can become just another way to harass women who’ve already faced enough harassment as it is.

Phillis h. Rambsy is a partner with the Spiggle Law Firm in Nashville, Tenn. Her legal practice focuses on workplace law where she represents employees in matters of wrongful termination and employment discrimination including racial discrimination, pregnancy discrimination, and other family-care issues such as caring for a sick child or an elderly parent. To learn more, visit www.spigglelaw.com.

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