Responding to Sexual Harassment in the Workplace


A woman farmworker in the Florida fields, where worker-organizers have innovated effective responses to rampant sexual harassment and assault (photo credit: Coalition of Immokalee Workers).

Since news broke in October about Harvey Weinstein’s abusive treatment of women, women working in entertainment, media, sports, politics and other industries have spoken out to expose the rampant sexual harassment and assault in their fields, bringing the extent of sexual violence into the national spotlight. Though much media attention has focused on high-profile celebrities, women working in low-wage industries have added their voices to the conversation, pushing the dialogue to sectors where women “work in the shadows of society…out of sight and out of mind for most people in this country.” With decades of experience organizing for gender, racial, and economic justice, these women have led the way in calling for a systemic response to sexual violence. 

In the ongoing dialogue and partnership between labor leaders and celebrity members of TIME’S UP (a new legal fund and campaign to end gender-based discrimination and harassment), one thing stands out across all industries: sexual harassment and violence are enabled by pervasive workplace cultures that normalize and conceal abuses, creating job conditions that endanger women’s psychological and physical health. These are precisely the type of unsafe workplace environments for which workers should be able to get legal relief. Yet the primary legal mechanisms that should be kicking in when workplace harassment occurs—workers’ comp and equal employment opportunity agencies—are failing to fix unsafe working conditions and failing to ensure that survivors of harassment and violence receive the income and care they need. 

Sexual harassment and workers’ compensation have a complex history. Workers seeking workers’ comp for harassment face difficult barriers. It is notoriously challenging to prove under workers’ comp law that the emotional distress caused by harassment is work-related. Usually, if a mental harm is directly linked to a physical injury or assault, it is easier to show legally that it was caused by workplace conditions. However, so-called mental-mental injuries — psychological injuries, like PTSD, that arise from a mental stressor, such as verbal harassment and threats — are still excluded by some states’ comp laws, and where they are recognized as compensable, they must meet tighter eligibility requirements. One common test applied to these cases requires that victims are exposed to “unexpected, unusual, or extraordinary” stress. While this makes it easier to access workers’ comp for cases involving a single, highly traumatic incident, it can make it more difficult in cases involving repeated sexual comments or other inappropriate behavior which adds up over time. 

Workers are also supposed to have recourse to Title VII protections under the federal Civil Rights Act. But these cases, handled by the Equal Employment Opportunity Commission (EEOC), come with their own complications. The workers most vulnerable to sexual assault and harassment are also vulnerable to retaliation, which prevents most workers who experience sexual violence from speaking up or filing a complaint in the first place. For low-wage workers who live paycheck to paycheck and immigrant workers who fear deportation, grossly delayed and ineffective protection is cold comfort. The choice many are left with is a grim one: either endure a hostile and abusive work environment or risk job loss and further harassment if they speak up. As one temp worker shared in a chilling testimony of an all-too-common situation, “If someone didn't respond to an [sexual] advance, you lost work. And if you responded, then you had work. If someone defends themselves, you lose work.“

Even when a worker decides to undertake the risks associated with filing a claim, hearings take years, often requiring constant struggle and effort. "Sometimes you just need money and have no time to fight. It's really a job in itself," says Tiana, a single mother of two, on navigating the administrative process of a state agency, adding that ‘it would be nearly impossible to keep this going‘ while working a normal schedule.

To mitigate delays, the EEOC uses mediation as a go-to solution for reaching faster decisions. But even with this approach, it takes an average of ten months to resolve a claim, and the resulting settlements can further silence victims’ voices as employers often make compensation contingent on employees keeping quiet. Furthermore, Title VII only protects those workers classified as employees, and companies with fewer than 15 employees are excluded. Finally, compensatory and punitive monetary awards are limited, particularly for smaller businesses, so they are seldom sufficient to deter employers that are unwilling to address — or are themselves complicit in — workplace harassment. 

Removing exclusions and limitations in both workers’ comp and Title VII remedies would be an important first-line response to help victims of sexual harassment and assault access needed care and compensation. One way to do this would be incorporating psychological injuries into workers’ comp in a more integral way, lowering the burden of proof and getting rid of provisions that require a link between mental harm and a physical injury. But the dense web of complications that works to stifle the voices of sexual assault survivors and block access to legal remedies cannot be undone without addressing structural inequalities that diminish women’s status and power in the workplace. And while power dynamics reproduce similar patterns of discrimination across drastically different sectors, we cannot ignore the fact that the economic insecurity of low-wage workers and prejudice against women of color, immigrant women, and lesbian, bisexual, and trans women compounds these individuals’ vulnerability to abuse in the workplace. Solutions need to focus on those workers who stand at the cross-section of cultural biases and economic injustice. 

Worker-led organizations have developed promising new models for workplace enforcement that use contracts with corporate buyers to ensure fair wages, basic rights, and freedom from retaliation. These programs, like the pioneering Fair Food Program created by the Coalition of Immokalee Workers, use the enormous purchasing power of corporate buyers to enforce higher labor standards in their supply chains by placing workers in charge of education, monitoring, and enforcement that holds tomato growers accountable to the workers' code of conduct. This is a powerful and effective paradigm that has the potential to transform other industries like it has the tomato industry, impacting tens of thousands of workers. But to protect the millions of workers impacted by systemic workplace abuses, we need effective public systems of enforcement. “Co-enforcement“ approaches that pair the meaningful participation of vulnerable workers with government agencies responsible for enforcing basic labor protections is a critical part of expanding and strengthening the public enforcement system, argues Janice Fine, a professor at Rutgers University and Research and Strategy Director at the Center for Innovation in Worker Organization (CIWO). Ultimately, responses to sexual harassment need to be part of comprehensive solutions that simplify fragmented workplace enforcement systems, place responsibility and liability with the corporate powerholders whose business practices generate systemic abuse, incentivize their preventative action and ensure freedom from retaliation.

For more on what to do if you experience or witness sexual harassment, see this factsheet from Equal Rights Advocates. To learn more about workplace sexual harassment protections and what can be done to strengthen them, see this excellent report by the National Women’s Law Center.