Despite the enhanced scrutiny and attention being paid to sexual harassment and assault, largely due to the #MeToo movement, official sexual harassment complaints to regulators at both the state and federal levels of the Equal Employment Opportunity Commission (“EEOC”) are at a 20-year low. From 1997 to 2017, there was a 41% drop in complaints: In 1997, the EEOC received in excess of 16,000 complaints from women, a number that has dropped to slightly more than 9,600 in 2017. Because the role of the EEOC is to decide whether a complaint has enough merit to become a legal suit in court, this basically means fewer potential cases are reaching the legal system.
The decrease is not because sexual harassment has decreased. It is instead because many complaints that could have been made to the EEOC end up diverted through the company’s own private process for handling sexual harassment. 95% of companies have an internal complaint process; 82% have a protocol for investigating that complaint. The problem is that employees remain scared to report sexual harassment in the workplace, despite these internal processes: 75% of employees experiencing harassment did not report it.
Moreover, there is a disconnect between how many employees experience harassment and how common HR departments in charge of redressing the issue think the problem is: 57% of HR professionals believe that unreported sexual harassment happens only to a “small extent.” Employees are also afraid of retaliation by employers in reaction to their complaint. Complaints around retaliation have nearly doubled between 1997 and 2017. 12% of workers have witnessed sexual harassment but did not proceed to report it because of a fear of retaliation.
While companies cannot impede employees from bringing the complaints to the EEOC, they currently can require employees to settle sexual harassment complaints through internal out-of-court arbitration, rather than going to the EEOC and maybe bringing a full-blown suit. More than 50% of companies require employees to do this. However, the attorneys general for all states, territories and Washington, DC sent a letter in February to Congress to change this system and prevent sexual harassment complaints from being made to go into internal arbitration. There is now a bill in the House and a bill in the Senate designed to address this issue. In addition, in late March New York state passed a bill barring companies from requiring these arbitration agreements.
In sum, internal policies – while they may be created with good intentions to provide employees with avenues within the company to redress their sexual harassment issue – can actually make the situation worse by stopping employees from bringing legal complaints and claims to the EEOC and potentially into the courtroom. Ultimately, the most important thing is making sure employees can actually get these issues fixed – and that employers actually follow employment law around sexual harassment – whether through internal processes, the EEOC, or the courts. For more information, contact an attorney, like a harassment lawyer today.
