By Donna Ballman
In the wake of the Herman Cain sexual harassment scandal, some conservatives are making outrageous and insulting statements about women who are sexual harassment victims. They ask, "Is there anyone who thinks sexual harassment is a real thing?" (National Review). "Experts" spout off nonsense like, "You know what sexual harassment is? You know what it really is? It's a political tool. . . . It's become an accredited way for malcontent women to score some money." (Rush Limbaugh) and "It always ends up being an employee who can't perform or who under-performs and is looking for a little green." (Laura Graham).
As an employment lawyer who has handled sexual harassment cases for 25 years, I want to make one thing perfectly clear: Yes, conservatives, there is sexual harassment. It's real. It happens every day. Twenty-nine percent of Americans say they've been sexually harassed at some point. And you don't want a world where it becomes legal.
SEXUAL HARASSMENT ESCALATES
Sexual harassment is almost never about sex. It's about power, plain and simple. Harassers, like rapists, like to exercise power over their victims. These are men (and sometimes women) who choose their victims carefully. They're sneaky. They know the danger of getting caught.
It usually starts with "jokes." The employee just started, wants to keep her job. She laughs, nervously. It's her boss. If she reports it, she's humorless. She doesn't want to make waves. He got away with it. The comments begin. "You have beautiful lips." "You look great in those pants." Should she report it? Why would anyone be offended? They're compliments, after all. She murmurs a hesitant, "Thank you."
The harasser knows he has a potential victim. He ramps it up. "Do you have a boyfriend? He can't take care of you like I could." "I'd love to take you to dinner." "Can you work late this weekend? I'll take you for drinks afterward." She's getting scared. He hasn't quite crossed a line yet. Has he? Should she report it? She has no choice but to work late or be fired, so she works late.
They're alone in the office. No witnesses. He gets too close. Brushes against her. "Would you like to see some pictures I have?" He shows her graphic porn. Or pictures of his family jewels. "I can't stop thinking about those beautiful lips. I'd like to see them wrapped around my ----." There. He's crossed a line. But he was smart. It's her word against a guy who has worked for the company 10 years. He's been promoted twice. He's a great producer. The company likes the results he gets. What does she do?
The Supreme Court says she has to report it if she ever wants to have the possibility of suing for sexual harassment. But there's a catch. Was what he did so severe or so pervasive that it altered the terms and conditions of her employment? The cases say no. So if she reports it, she might not be protected from retaliation. Plus, who will believe her? If she reports it, most HR departments will find that they are unable to substantiate her claims. The harasser is still her boss, and he knows she ratted him out.
She can try to ignore him. Tell him to stop. He tells her to be cool. So she goes to the ladies' room and cries a bit, gets back to work, and goes home as soon as she can.
Either way, he got away with it. He won't stop. No way. Harassers don't stop until someone makes them stop.
Next comes the grabbing. When she's alone with him, he pulls her close to him. Tries to kiss her. Grabs her crotch, her breasts. She tries to pull away. Should she slug him? Not if she doesn't want to be fired for workplace violence. Should she report it? Yes. Absolutely. But there are no witnesses. Odds are, HR still won't believe her over their top-producing manager.
What can she do? He's still her boss. She's terrified to go in. If she quits, the courts say she wasn't constructively discharged. It wasn't so intolerable that no reasonable person would be able to continue working there. Right? She should have kept reporting it. Given the company a chance to fix it. If she quits, she loses her unemployment.
She can go to Equal Employment Opportunity Commission (EEOC). At least if she files with EEOC, she's protected from retaliation. But again, it's he-said, she-said. Ultimately, they issue a dismissal and right to sue. In the meantime, she's a pariah at work.
If she reports it, the retaliation begins. Ultimately, she's probably fired. She's a trouble maker. A liar. She becomes suddenly stupid. A poor performer.
By the time a sexual harassment victim gets to a lawyer, she is usually a wreck. She's afraid. Her odds of winning a suit are terrible. There are no witnesses. Nothing but her word. The company lawyers will try to trash her reputation.
BEST CASE SCENARIO IS STILL TERRIBLE
So let's talk about the rare sexual harassment case where a company actually pays out money.
That usually means that multiple complaints were made. Or there's some evidence -- text messages, emails, something that isn't just the victim's word. And it's frequently severance. The company wants her gone, whether or not she was telling the truth. She loses, no matter what.
The harassers are usually not fired. If he's caught, he might get a warning. A note in his file. Usually nothing happens. The victim was transferred to another (lower paying) position or fired. He's free to harass again. Next time, he's more blatant. Maybe after 3 to 4 of these cases, he's finally fired. But the company won't give out bad references, so he's free to go elsewhere and do it again.
That's why so few sexual harassment victims come forward. That's why so many harassers get away with it. I've never met a single sexual harassment victim who found it easy to come forward. They know what they're in for if they report it. The few who do report it are incredibly brave. Maybe nothing will happen to the harasser this time, but the company might take it seriously the next time a woman says he did it to her, too.
THE VICTIM COULD BE ANYONE
Who are sexual harassment victims? They might be those women perceived as weak: single moms, women with disabilities or severe illnesses where they need insurance, women with ill family members who need insurance, or women working their way off welfare. They might also be women perceived as too strong. Some harassers like to knock strong women down. Wouldn't want them to get too uppity. I've seen teens, women in their 70s, beautiful women, average women, fat women, thin women -- every type of woman imaginable, all suddenly not safe at work.
Think your daughter is safe? Think again. Your wife? No way. Your mother? Nuh-uh.
WHAT HAPPENS IF SEXUAL HARASSMENT BECOMES LEGAL
So what happens if all the yammering that's coming out of this turns into action? What happens if sexual harassment becomes legal again? Imagine a world where a boss can say, "Get down on your knees." Where the business trip with a shared hotel room is expected. The norm. Where humiliating women is allowed. Expected. If he grabs her, she can't swat him away. If he drags her into his office, she's expected to submit or be fired. Is that a world you want for the women in your life? For yourself, if you're a woman? It's a horrendous future to imagine.
Is that the world we want as Americans? I hope not.
The next time a pundit insults all sexual harassment victims and says sexual harassment doesn't exist, please remind them that it is hard enough for women to come forward and report sexual harassment. They shouldn't be mocked and insulted too.
Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues is Screw You Guys, I'm Going Home. To find out more about Donna, visit her on Red Room, where you can read her blog and buy her books.