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Will sexual harassment law evolve?

The publicity surrounding recent cases of sexual harassment may help foster an important cultural awakening. For decades, even generations, victims of workplace harassment have been ignored or intimidated into silence. As more people come forward to share their experiences with sexual harassment, perpetrators and enablers will find it harder to keep their misdeeds a secret.

Public outcry is valuable, but there is another factor that must be addressed in helping workers who are sexually harassed. Courts around the country have long been willing to dismiss cases of sexual harassment, even when the evidence shows blatant misconduct. People who experience sexual harassment will continue to be reluctant to report the abuse if valid claims are dismissed and employers are allowed to retaliate. 

By the numbers

Surveys show that a significant percentage, 25 to 50, of women have been sexually harassed at work. Of those who have been harassed, only around 10 percent reported the problem to employers. When cases are reported, they rarely make it to trial. Many settle out of court, but others are dismissed by judges before a trial can begin. An American Bar Association researcher determined that 37 percent were dismissed.

Severe or pervasive

Dismissals are likely based on the judges' interpretation of the Supreme Court ruling that the behavior complained of must be severe or pervasive to be called sexual harassment. There is substantial room for interpretation in that language. Most workplace policies ban behavior that is far less offensive than some behavior that has been dismissed as not meeting the "severe or pervasive" standard.

Understanding sexual harassment

Another possible benefit of the attention received by sexual harassment is that the public, and judges, may get a better understanding of what types of behavior are unacceptable. Workers should not, and will not, tolerate employers who engage in quid pro quo harassment or who create hostile work environments. The behavior that went unpunished in decades past will not withstand public scrutiny any longer. Employers do not have the right to sexually harass workers or to allow harassment to continue unpunished. 

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