By Brittany Lewis, MCASA Program Intern and Alexandra Hoskins, Esq., Staff Attorney, SALI
“Woman Asks Feds to Reopen 2014 Title IX Investigation of Larry Nassar”
“US Restaurant Workers Target Low Wages in Campaign Against Sexual Harassment”
“Could the #MeToo Movement Change Sexual Harassment?”
The national dialogue surrounding the topic of sexual harassment is gaining momentum as we see headlines like these on a day-to-day basis. Many survivors have recently come forward to recount their experiences of sexual harassment, and these stories have inspired movements such as #MeToo and #TimesUp. It is important for everyone to recognize and remember that sexual harassment includes sexual violence. Sexual harassment is pervasive in our society, and the cumulative effect of such harassment can be very harmful to those who experience it. Sexual harassment needs to be taken seriously, and we need to believe survivors.
What is Sexual Harassment?
Sexual harassment in the workplace includes “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Sexual harassment is not just about sex. Offensive comments about someone’s sex or gender identity can also be sexual harassment. Requesting sexual favors or a sexual transaction in exchange for a raise, promotion, or other benefit is known as quid pro quo harassment (and perhaps better described as sex by extortion). Sexual harassment can also occur if someone is demoted or let go for not agreeing to sexual advances. Sexual harassment is illegal when frequent or severe incidences of harassment create a “hostile work environment” or involves quid pro quo harassment. Employers can be held liable, however, only if they fail to act and only if the conduct meets other legal requirements. We have a long way to go before the law adequately addresses this issue.
When an employer fails to properly address workplace sexual harassment, Maryland survivors have several options for reporting the discrimination and seeking relief:
United States Equal Employment Opportunity Commission (EEOC): The EEOC will investigate claims of sexual harassment and make a determination about whether an employer has responded appropriately to address, remedy, and prevent any harassment. In some cases, the EEOC will work to settle a case between a survivor and employer. In other cases, the EEOC will issue a “right to sue” letter. The EEOC only investigates charges against employers with at least 15 employees. In Maryland, charges of sex discrimination must be filed with the EEOC within 300 days of the date of discrimination. The EEOC does not investigate charges involving discrimination against independent contractors.
Maryland Commission on Civil Rights (MCCR): The Maryland Commission on Civil Rights operates very similarly to the EEOC, and complaints with the MCCR can be cross-filed with the EEOC. The MCCR investigates allegations of sex discrimination involving employers with 15 or more employees, and complaints must be filed within six months of the act of discrimination. The MCCR does not investigate complaints
County Agencies: Some Maryland jurisdictions have agencies that can investigate and adjudicate cases of employment discrimination, including Baltimore City, Baltimore County, Frederick County, Howard County, Montgomery County, and Prince George’s County. The jurisdictions vary in the number of employees required for the agency to be able to investigate—Baltimore City and Frederick County will investigate complaints where there are at least 15 employees working for the employer, Howard County requires at least 5 employees, and Baltimore, Montgomery, and Prince George’s County require only one employee. The jurisdictions also vary in the filing deadlines for any complaints of sex discrimination—Baltimore City and Prince George’s County require complaints to be filed within 180 days, Baltimore, Howard, and Frederick Counties require complaints to be filed within 6 months, and Montgomery County requires complaints to be filed within one year.
Civil Lawsuits: In some cases, investigating agencies will issue “right to sue” letters that allow survivors to file lawsuits against their non-complying employers. In other cases, survivors may be able to file a lawsuit independently.
Anyone considering reporting their employer to one of the above agencies or filing a lawsuit related to workplace sexual harassment should talk to an attorney with experience in employment discrimination. The attorney will be able to more thoroughly explain the survivor’s rights and options, and help the survivor choose the best option for them.
Factors Influencing Reports of Sexual Harassment
Many factors can impact whether someone decides to report sexual harassment. Race, age, sexual orientation, gender and immigration status can influence whether or not an individual reports. In many cases, employees fear they may face retaliation or lose their job. Individuals that lack legal status or who work low wage earning jobs are often particularly concerned about the possible repercussions of reporting.
In addition to the personal factors that influence disclosure, many companies have policies that work to discourage reports of sexual harassment. For example, some companies require employees to sign mandatory arbitration clauses or nondisclosure agreements upon hire that force individuals to settle disputes such as sexual harassment out of court and in secrecy. Forced arbitration discourages individuals from reporting incidences of sexual harassment and allows perpetrators to continue anonymously abusing their power. Legislators at the state and federal level have recently introduced bills to prevent these practices. In Maryland, legislation was passed during the 2018 legislative session that will prohibit employers from requiring employees to waive substantive or procedural rights. This bill also requires larger employers to report sexual harassment settlements to protect employees from being victimized. On the federal level, legislation introduced in December of 2017 prohibits employers from requiring arbitration in cases involving sex discrimination or harassment.
All forms of sexual violence, including sexual harassment, can have devastating effects for the individuals that experience it. The Maryland Coalition Against Sexual Assault is dedicated to eradicating all forms of sexual violence in the state of Maryland. Please visit MCASA’s resource page for more information on how to get assistance.
"Sexual Harassment." U.S. Equal Employment Opportunity Commission. https://www.eeoc.gov/laws/types/sexual_harassment.cfm.