The rise of the #MeToo movement has catapulted a resurgent focus on sexual harassment into the national limelight and consciousness. The new attention has shed greater light on the persistence and prevalence of sexual harassment, but it has also prompted new scrutiny—and even backlash—that has questioned whether the current response to sexual harassment charges has been overly harsh. Some critics, most notably President Donald Trump, have called for a greater focus on due process for those accused of harassment, arguing that they are being condemned prematurely, resulting in unfair conclusions that can have lasting impact. At the same time, these critics have ignored the larger context of the persistent, deep skepticism about women’s sexual harassment claims that has resulted in a failure to take charges seriously, and has disadvantaged sexual harassment survivors seeking a fair resolution of their claims. Ensuring a fair process for addressing sexual harassment claims requires more than a narrow, incomplete focus on solely securing protections for perpetrators. Rather, it requires a comprehensive look at the overall process to identify barriers to uncovering the facts and the truth, eliminate biases against all parties, and create an environment where claims are treated seriously and addressed promptly.
Fair Process: Understanding what the law does and does not require
Establishing a process to address sexual harassment claims that is unbiased, thorough, and dedicated to the truth is central to the fair administration of justice for both survivors and perpetrators of sexual harassment. When any part of the process for considering sexual harassment claims is flawed, it undermines the credibility of and trust in the process overall—and risks eroding confidence in whether justice can and will be served for all parties. Thus, it is important to carefully consider what a real commitment to fairness and due process should require.
Much of the current conversation about sexual harassment has invoked the concept of due process colloquially to make a broader, more subjective point about the need to treat fairly those alleged to have sexually harassed another person. But, in the legal realm, due process has a more precise legal meaning. Due process—a constitutional protection established in both the Fifth and 14th Amendments—is the obligation of the government to administer the law through the courts in a manner consistent with established rules and procedures. This means that the government cannot deny an individual of life or liberty or property, for example, without adhering to a specific legal process. Rooted in this definition is a core principle: Every individual is entitled to be treated fairly under the law, as well as participate in a legal process that is neither arbitrary nor biased in favor of one party over another. However, these constitutional due process guarantees specifically apply to government action; they do not govern the private sector. In other words, private employers are not constitutionally required to provide people accused of sexual harassment with specific procedural protections. There are regulatory examples of due process protections for both survivors and perpetrators of sexual misconduct under laws such as Title IX, the landmark law that prohibits sex discrimination in federally funded education programs. But, outside of the constitutional and educational contexts, employers in many private sector employment settings have considerable latitude in developing a process to handle harassment claims, unless the employer has committed to a particular process—for example, in an employment contract, a collective bargaining agreement, or some other type of agreement.
Widespread sexual harassment in the workplace
Sexual harassment—defined as unwanted sexual or sex-based conduct that is made a term or condition of employment, or used to interfere with an individual’s work or create a hostile work environment—has persisted in workplaces across industries and occupations for decades. For years, victims have unfortunately stood on unsteady ground in an environment that has been too lax about and too dismissive of sexual harassment allegations. The status quo has meant workplaces where too many sexual harassment claims have been discounted as an overreaction; too many survivors have been ignored; and too many perpetrators haven’t experienced consequences for their actions. This atmosphere has put individuals who face sexual harassment at a disadvantage, struggling to navigate a workplace where they feel disempowered and unable to change their situation. Although more research is needed, a report by a select task force on harassment convened by the U.S. Equal Employment Opportunity Commission (EEOC) noted several studies revealing the large number of women who experience harassment in the workplace. In particular, a study examining a cross-section of surveys using a national random sample reported that an estimated 1 in 4 women have experienced work-related sexual harassment, but the rate rose to nearly 60 percent when women were asked whether they had experienced a specific type of conduct, such as an unwanted sexual advance.
What should a fair process to address sexual harassment require?
Many of those who experience sexual harassment are reluctant to report it, in part because of concerns about due process, retaliation, and whether the overall system for reporting harassment will treat all parties fairly. Derogatory stereotypes about masculinity and femininity, fueled by gendered racial and ethnic biases, are used to perpetuate a harmful narrative. Discussions about an individual’s experience with sexual harassment focus on issues such as what that person was wearing; how many relationships that person has had; or how that person conducted herself or himself in a particular situation. Harmful biases may involve assumptions about a person’s sexual orientation or gender identity or expression, regardless of the victim’s identities. Furthermore, lesbian, gay, bisexual, and transgender (LGBT) people are also not immune from harassment. Although more data is needed, the EEOC report on sexual harassment noted research finding that more than one-third of LGB-identified workers reported being harassed in the workplace, and a different survey of transgender individuals found that 50 percent reported being harassed at work. Much of this narrative too often places the blame for harassment on survivors. It is in this context that we must consider what a fair process for addressing sexual harassment complaints in the workplace should look like and where workplaces and policymakers are falling short. The following are seven concrete ways to make progress.
1. A concrete sexual harassment policy that describes what is and is not permissible
Any reporting mechanism developed to handle sexual harassment charges must operate pursuant to a concrete policy that explains what behavior is and is not permitted. It is critical to ensure that all workers understand their obligations and responsibilities, and that there are clearly defined expectations of proper workplace conduct. Every workplace is not the same. There may be some workplaces that establish even higher standards than those required by law, such as employers who want to be industry leaders in addressing sexual harassment. Having a clear policy provides a benchmark against which to measure how the reporting mechanism is supposed to work, how well it is operating, and what protections are supposed to be in place for all parties.
2. A clear and fair reporting mechanism
A fair reporting process must be clear, well-understood among all parties, and communicated in a thorough manner. In too many workplaces, employees are unclear about how to report harassment, or how the process works overall. This can lead to confusion and distrust. Having a clear reporting mechanism is essential for both survivors and those accused of sexual harassment.
3. Prioritize addressing systemic process concerns
It is critical that the overall system within which any sexual harassment reporting mechanism operates inspires confidence and trust. The EEOC report noted that as many as 70 percent of sexual harassment claims are never formally reported, suggesting that many workers have serious concerns about whether they can trust the reporting mechanism that is available to them on the job. If an institution, an organization, or a company fosters an atmosphere of fear, retribution, or deception, few workers will have faith that the organization’s method for reporting harassment will be fair and even-handed. Moreover, if there are serious structural biases within an organization—such as an overall lack of accountability for supervisors or blurred reporting lines—it is possible any fair process mechanism will exhibit the same flaws and biases. A reporting mechanism intended to provide any form of a fair process is dependent on an overarching structure that operates with credibility and integrity. Thus, confronting broader structural inequities within an institution should be part of any effort to ensure a fair process for all.
4. Incentivize the truth
A commitment to a fair process must also establish the right incentives to bring the truth to light. Denials do not equal innocence, nor do accusations equal guilt. Any process for reporting and investigating sexual harassment claims should encourage claimants, witnesses, and those who are accused to be truthful. This means protecting the innocent from adverse consequences, as well as considering different disciplinary options for those who have engaged in misconduct but later come forward. Conversely, those who are untruthful should be held accountable, for example, through stiffer mandatory penalties or disciplinary measures—and repeated denials in the face of credible facts should not be rewarded as a strategy to obscure an investigation. Furthermore, although research on sexual assault and other types of sexual violence suggest that false accusations are rare, such wrongdoing should be dealt with equal harshness.
5. Be free of bias and administered in an even-handed manner
Establishing a fair process mechanism requires a commitment to identifying individuals to administer the process who can operate in an unbiased, even-handed manner. For instance, individuals tasked with considering claims cannot harbor preconceived notions of who victims are or who commits harassment. That means that victims should not be dismissed or viewed skeptically when they raise a sexual harassment allegation based on whether they are liked or disliked, rumors and innuendo, or looks and perceived attractiveness. Nor should there be assumptions about perpetrators based on these or other factors such as whether they generate large amounts of revenue for their employer. Survivors and perpetrators of harassment do not look a certain way or come from one particular community—they cut across racial, gender, ethnic, economic, and geographic lines. Furthermore, the facts surrounding any allegation must be considered fully and completely without regard to personal preferences or assumptions.
6. A robust commitment to combating retaliation
Having a fair process requires that employers take explicit steps to prohibit retaliation or other adverse action when sexual harassment survivors or witnesses come forward. Nearly three-quarters of claimants alleging sexual harassment in 2016 and 2017 also filed a claim of retaliation at some point during the investigation process. This data, combined with other research showing that those who confront sexual harassment are often unwilling to come forward because of fears of retribution, suggests that strengthening anti-retaliation protections is essential to creating an overall process that has credibility among all parties.
7. The ability to invoke meaningful remedies
A fair process should encompass strong remedies that are actually responsive to the problem. It is essential to focus on making all parties whole, including through counseling for all parties involved. The overall goal should be to create a work environment free of harassment, which includes lessening the likelihood that harassment will re-occur. This means addressing the effects of harassment on the survivors; it also means exploring potential counseling options aimed at changing the future conduct of the perpetrator. Dismissing or firing an individual who engages in sexual harassment, without exploring ways to address the underlying behavior, may simply move an offender from one workplace to another.
A fair, unbiased process to consider claims is essential to addressing and remedying sexual harassment. It must start with a clear understanding of the current environment and the existing biases that often disempower survivors and make it harder to combat illegal, discriminatory behavior. Achieving fairness in sexual harassment cases must embrace correcting power imbalances by putting both survivors and perpetrators on even ground. Moreover, combatting sexual harassment effectively requires an intentional commitment to creating a better system and overall process for considering sexual harassment claims to ensure justice for all.
Jocelyn Frye a senior fellow at the Center for American Progress. Michele Jawando is a vice president at the Center.