The Truth About Sexual Harassment and Retaliation

By julie steinberg

The workplace seems to be getting safer for women when it comes to sexual harassment.

Sexual harassment charges across 20 different industries decreased to 11,717 in 2010 from 15,475 in 2001, according to data provided by the Equal Employment Opportunity Commission (EEOC), the U.S. body that oversees discrimination laws. While the decline in sexual harassment charges could point to tougher policies in the workplace that obviate the need for federal involvement, experts say that the situation may be more complicated. Women could just be more reluctant to come forward for fear of retaliation from their employers.



Pockets of Progress

The finance, insurance and real estate industries in particular saw a significant decrease in sexual harassment charges during the last decade: 266 were filed in 2010, down from 641 in 2001. Charges filed in engineering, which includes civil engineering construction, engineering services and research and development in the physical and life sciences, decreased to 48 in 2010 from 55 in 2001.

Elizabeth Grossman, a regional attorney at the New York District Office of the EEOC, said many Wall Street firms are now conducting thorough investigations into internal claims within their HR departments.

Over the past decade, Grossman said, many firms have implemented tough sexual harassment policies: Morgan Stanley, Bank of America and Goldman Sachs, for example, all claim zero tolerance for sexual harassment. All three companies said they've had policies in place "for many years" -- none would specify how many -- designed to address sexual harassment and discrimination claims.

While it's not required for employees to file a complaint with their company before reaching out to the EEOC, the agency recommends that they do so.

"[The decline in charges] may be due to the fact that a company has a strong HR department, everything gets corrected as soon as it's reported, and there's no reason to file an EEOC charge," Grossman said.

"Over the years, we have continued to refine and enhance our compliance programs -- including providing multiple avenues for employees to report concerns or complaints -- and are committed to maintaining a workplace where people of diverse backgrounds can flourish," a spokesperson for CB Richard Ellis, a real estate services company, said. "Because of this effort, we are seeing fewer filed cases as employees raise potential issues earlier through internal channels."



Wake-Up Call

The finance industry has also witnessed some high-profile harassment suits over the past decade, such as those filed against Morgan Stanley in 2007 and CB Richard Ellis in 2002.

"When that happens, that's often a wake-up call within the whole industry to get their act together," said Peggy Stockdale, a professor of applied psychology at Southern Illinois University Carbondale and an editor of "Sex Discrimination in the Workplace: Multidisciplinary Perspectives." "More policies are put into place and there's more leadership training, which could help bring the numbers down."

Amy Siskind, a former department head of distressed debt trading at Morgan Stanley, believes that the issue of sexual harassment has been in accurately portrayed as an industry problem. The real culprits are individual managers, not the firms themselves, she said.

"The industry itself is not flawed," said Siskind, who co-founded The New Agenda, an organization dedicated to advancing women into leadership roles. "It really comes down who the managers are in a particular division. Some are gender-blind and some are gender-biased."



The Bad News

Although the number of sexual harassment charges has gone down and Wall Street has grown more accommodating of women over time, (see William D. Cohan's account of gender issues at Lazard in "The Last Tycoons: The Secret History of Lazard Frères & Co."), a locker-room mentality may still pervade.

One analyst at a bulge-bracket bank who did not want to be named said senior executives from private equity firms with which she dealt would consistently stare at her chest or call her "sweetheart." In one off-putting moment, a vice president from her bank hovered over her and told her she smelled "so good," to which she replied: "Thanks, you should get this shampoo for your wife."

In traditionally male-dominated workplaces, "you often still see the remnants of the former culture," said Grossman.

The low harassment numbers could be a reflection of women's desire to stay quiet. Reporting allegations of sexual harassment entails a career risk many women may not want to take, according to employment lawyers, particularly in an economy that's still unstable and seeing layoffs. The EEOC numbers may not accurately reflect actual incidences.

"These are certainly not the numbers of people being harassed," Stockdale said. "These are people who have gone all the way to file a complaint with the EEOC. It's the tip of the iceberg."

Women who file a complaint take on the risk of losing their job, receiving a demotion, being passed over for plum assignments, and other such retaliation from their employers.

"Women are terrified to come forward because they feel vulnerable with regard to their job security," said Allegra Fishel, an attorney at Outten Golden, a New York-based employment law firm. "When a woman comes forward and complains about sexual harassment, she loses traction in the short run, for sure, and maybe in the long run for their career success."



Retaliation Claims Rise

Employees can file a retaliation claim with the EEOC and ultimately a lawsuit against the company if they believe they are the target of retaliation by the company for having filed a discrimination complaint.

In 2010, for the first time in the EEOC's history, retaliation was the most frequently filed charge (36,258 claims). Retaliation rates in engineering rose to 195 charges filed in 2010 from 107 filed in 2001. Similarly, the number of charges in marketing, which includes marketing research, public polling and telemarketing, increased from 5 in 2001 to 55 in 2010. Finance, on the other hand, has been on a downward slope to 1,266 retaliation charges filed in 2010 from 1,662 charges filed in 2001.

An increase in retaliation claims could be tied to a Supreme Court case from 2006. In Burlington Northern v. White, the Supreme Court expanded the scope of what constituted a retaliation claim, concluding that "the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

"The Supreme Court ruling has made employees more confident about filing a charge," said Adam Klein, a partner at Outten Golden and the co-lead plaintiffs' counsel in the gender discrimination lawsuit against Goldman Sachs. "In a bad market, employers are less willing to tolerate [discrimination] complaints, leading to more retaliatory actions, and employees are fighting back."



Cycles of Concern

Even for those who are pleased that companies have made strides on this issue over the past decade, they're not ready to relax just yet.

Public interest in sexual harassment issues tends to go in waves, peaking when cases like Anita Hill's make the front page and then receding shortly after, only to rise again when a new lawsuit comes along. (Hill was an attorney-advisor who in 1991 claimed Supreme Court Justice Clarence Thomas had made unwelcome sexual statements to her).

"People have cycles of concern," Stockdale of Southern Illinois University Carbondale said, referring to the above phenomenon. "A downward trend does not mean that sexual harassment will go down to zero. I would hope that training and attention and good leadership practices do have a benefit, but they have to be maintained. It can't be a one-shot-in-the-arm type of approach."

Write to Julie Steinberg



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