Workplace Harassment – Not Just for the Rich and Famous

By Lindsay Halm, Employment Lawyer, Schroeter Goldmark & Bender

Nobody knows exactly why it is happening at this moment in history.  But nearly every day for the last month, another man stands accused of sexual harassment. Each woman to tell her story lends courage to the next and so on and so on. If you have been following these stories on the news or on social media, you might feel encouraged: finally, people are paying attention!  Maybe you have shared your own story and have felt less alone in your suffering. It is true there is strength in numbers.

But perhaps all of the attention paid to these celebrities and their victims (often, other celebrities) makes you feel like nobody pays attention to sexual misconduct unless it involves the rich and famous. Maybe you think nobody will believe your story because it hasn’t been reported on TV or in the newspaper.  You have more power than you know. The laws that protect against sexual violence and harassment in the workplace protect rich and poor, citizens and non-citizens, brown and white, gay and straight, the famous and the not so famous.  In Washington State, you have the right to go to work without having to endure unwanted physical touching, lewd comments, or requests for sexual favors. The law does not require that your boss be nice to you, but he cannot target you sexually.

So, what should you do if someone is harassing you at work? 

(1) Tell someone. The majority of victims of sexual harassment do not come forward to report abuse. They worry nobody will believe them or they will be fired if they complain. But you cannot get protection from harassment in the workplace until you tell someone at the company who has the power to stop it. This is usually a manager or owner.  When you report harassment, don’t say something vague like, “he’s bothering me.”  Be specific about what happened. Did he touch you?  Where did he touch you?  What did he say? How did it make you feel? If your boss is the person harassing you, tell your boss’s boss or another manager you trust.  If a coworker is harassing you, tell that person’s boss. If there are other people being targeted by the harassment, make a complaint together with the other workers. (Remember: there is strength in numbers.) If the harasser assaults you physically, consider reporting it to the police.

Once you report the misconduct to your employer, it is illegal for the company to punish you for making a complaint.  For example, your boss cannot demote you, fire you, or reduce your hours just because you report sexual harassment. 

(2) Take notes. As soon as you can, write down what the harasser did to you, when he did it, and the name of any person who saw or heard what happened. You should also keep notes of what you tell your employer about the misconduct and what they say in response.  If you complain in writing, keep a copy.

(3) Find help. You do not have to suffer alone. Ask your employer’s human resources staff about free and confidential counseling options (sometimes through what is called an “employee assistance program” or “EAP”) or obtain a referral from a service like Consejo Counseling.

(4) Consult with a lawyer. If the harassment continues even after you report it to management, or if your employer fires you for complaining about it, reach out to a lawyer. 

You do not have to be rich or famous to stand up to sexual harassment.  At SGB, we have helped countless clients on their journey to hold employers accountable.  If you need help, call us.

The material in this article is general in nature and is not intended as legal advice.  You should contact a lawyer if you have a question about your particular situation.

Lindsay Halm, Attorney

Consequences for College Rape

By Sandra Widlan

This past May, Washington State University (WSU), along with 55 colleges, faced a Title IX investigation over how WSU handles sexual assaults which occur on campus.  Title IX of the Education Amendments of 1972, states:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

This means that if a college engages in gender discrimination the government may withhold federal funding.  Title IX has been used successfully to require colleges to support women’s athletics.  Title IX is now being used to address sexual assault on college campus.

A study of college campuses found that one in five undergraduate women is a victim of sexual assault.  The trauma from sexual assault prevents victims from attending class, studying, and pursuing an education.  Going through a college’s sham investigation into the assault makes matters much worse and compounds the injury.  In recognition of this, the Department of Education has informed colleges that the failure to appropriately address sexual assault on campus violates Title IX and puts colleges at risk of losing federal funding.  WSU is one of those colleges.

The White House Task Force to Protect Students from Sexual Assault has announced recommendations to promote fairness when responding to college sexual assault.  These include:

• Using the preponderance-of-the-evidence (i.e., more likely than not) standard in any fact-finding hearings to determine whether sexual assault occurred, rather than requiring the student prove ‘beyond a reasonable doubt’ that the assault occurred;
• Making sure that the adjudicators in fact-finding hearings have received adequate training in how to handle sexual assault allegations;
• Prohibiting questioning or evidence about the student’s prior sexual conduct with anyone other than the alleged perpetrator; and
• Explaining the possible results of the adjudication process, including sanctions, remedies/accommodations for the victim, and additional remedies for the school community.

In May, Time Magazine published a cover story, “Rape:  The Crisis in Higher Education.”  In it, Time cited a University of Massachusetts study which found that a small number of young men commit most of the rapes.

A crucial finding: among the relatively small group of perpetrators, more than half were repeat offenders, averaging nearly six rapes each.  Other studies of young men have reached similar conclusions.  In short, most guys are good guys.  But the ones who are bad aren’t just straying over a line.  Instead, they show a pattern of violent behavior.

In that same article, Time reported on the efforts of the University of Montana in Missoula has made to combat college rape including training bystanders to help prevent sexual assault.

With grant money from the Department of Justice, Missoula launched a cutting-edge-bystander awareness program designed by experts at the University of New Hampshire.  It helps students come up with realistic strategies to intervene in sexual assaults before they happen – by trying to distract or stop a potential perpetrator or getting a potential victim (like an intoxicated girl) away from a risking situation.

However, there are limits to what students can do to protect each other and colleges, like WSU, need to have policies and procedures in place that protect victims of sexual assault.  As Vice President Joe Biden stated:

You don’t want to be a school that mishandles rape.  Guess what?  Step up.  It’s time.

Sexual Assault in the Military

By Kathy Goater

Aren't they Ashamed?  One of the most high-profile sexual misconduct cases in years ended when a military judge at Fort Bragg gave Brig. Gen. Jeffrey Sinclair a formal reprimand and ordered him to forfeit $5,000 a month in pay for four months.  Sinclair was allowed to remain in the military, keep his pension and avoid jail time under a plea deal which dropped the most serious charges of sexual assault, “open and notorious” sex, and threatening to kill the accuser and her family.  

Seriously - a plea bargain followed by a reprimand and fine is all that happens to a high ranking member of the armed forces who admits to engaging in inappropriate relationships with three female subordinates?  In the real world that’s called sexual harassment for which the perp would be liable to the victim and required to pay compensation for the emotional/psychological injuries he caused.  Should anyone be surprised General Sinclair smiled and hugged his attorneys after that sentencing hearing?

The military’s answer to victims of sexual assault and harassment doesn’t even amount to a slap on his proverbial wrist.  Do you think your women friends in the armed services are more secure knowing this is how the military is going to deal with sex offenders and men in power who sexually harass subordinates?

The military does not have a good record for responding to or curbing sexual assault and harassment.  A Pentagon study estimated there were 26,000 cases of unwanted sexual contact in 2012 up from 19,000 from the previous study.  The pentagon also reported 5,000 reports of sexual assaults in the military for fiscal year 2013, which was a 50% increase from the preceding fiscal year.  

President Obama signed reforms in December 2013 that established minimum sentencing guidelines for military personnel found guilty of sex crimes, stripped commanders of power to overturn sentences that result from court-martials, and eliminated a 5 year statute of limitation on reporting sexual assault. 

These reforms are not enough.

Last month, the top army prosecutor of sex crimes,  Lt. Col. Joseph “Jay” Morse,  was suspended after a lawyer who worked for him recently reported he’d groped her and tried to kiss her at a sexual-assault legal conference more than two years ago.  The president of Protect Our Defenders, Nancy Parrish observed,

             "If true, this case is yet another disheartening example of the hollow pledges of ‘zero tolerance’ we have heard for more than 20 years.”  

            “When the military has those at top of the chain who are in charge of fighting sexual assault accused of sexual misconduct at a conference on sexual assault it should be clear to every level headed human being [that] the status quo must be changed." 

Why can’t we have accountability?

Unfortunately, Senator Kirsten Gillibrand’s (NY) attempt to pass legislation that would strip the chain of command’s authority over sexual assault cases was not successful.  Her legislation lacked sufficient votes to overcome a filibuster – a filibuster designed to preserve the status quo of letting the chain of command control sex assault prosecutions.   The stats released by the Pentagon demonstrate the status quo isn’t working.  Out of 26,000 estimated military sexual assaults in 2012, only 3,374 were reported, and only 302 were prosecuted, according to the Department of Defense. 

What about a civil lawsuit?

The United State Supreme Court in its ruling in Feres v. United States, 340 U.S. 135 (1950), determined that federal law governs claims by members of the military while on duty for injuries caused by the negligence of the government.  The law of this case is known as the Feres Doctrine.  The basic premise is that a person in the military can’t sue the government for its negligence in causing injury.  There is a substantial body of case law interpreting the Feres decision, but none of it permits a member of the service, who is a victim of sexual assault, to sue the US government regardless of how careless the military has been in terms of stopping sexual assault or protecting them from such assaults. 

There have been many creative attempts to work around the holding of Feres, for the most part without success.  Whether the Feres Doctrine precludes lawsuits against the perp, is a different question, but suing an individual generally requires a belief that the perp has sufficient assets to make the journey worthwhile.

Sexual Assault on College Campuses:

By Kathy Goater

Students Join Forces against Universities that Inadequately Respond to Sexual Violence.

Something new and exciting is occurring on our nation’s college campuses – victims of sexual assault are joining forces and filing collective complaints with the Department of Education Office of Civil Rights.  These multi-victim actions are aimed at making universities accountable for deterring sexual violence.  The complaints are designed to prompt investigations into the schools’ practices thereby precipitating change in how the schools respond, or alternatively will lead to lawsuits by the respective students.  For your information

Sexual violence on campuses isn’t new, nor is the failure of administrators to adequately respond to rape.  A campus where sexual violence is tolerated or permitted because of inadequate responses to complaints, effectively denies victims access to a full educational experience.

When a student is sexually assaulted and the university fails to properly respond to such complaints, the school can be liable to the victim under Title IX of the Education Amendments of 1972.  Title IX prohibits discrimination on the basis of sex in any educational program receiving federal funding.  Basically, when schools act with deliberate indifference to known acts of harassment in its programs or activities,  and victims thereby miss out on parts of their educational experience, the victims are being subjected to discrimination and the school can be held accountable.

In the past, students on an individual basis bravely took on universities on Title IX complaints.  Being the sole plaintiff suing a university can be an intimidating and difficult process.  In one case handled by my law firm, our client S.S. sued the University of Washington after she was raped by a member of the football team.  Her report to school authorities led her to a closed hearing where she was supposed to sit opposite the man who raped her and reach an accommodation with him.   The school took no meaningful action against the perp.  On hearing the case, the Washington Court of Appeals agreed that an inadequate response to rape by the University of Washington, has the potential to limit a victims access to education for which the school can be liable.  S.S. v Alexander, 177 P.3d 724 (2008).

Switching from a solo voice to that of a choir is the new tactic being used by victims of sexual violence at Occidental, Swarthmore and other universities.  Technology along with some creative thinking and verve led students collectively to complain and proceed against their schools.

Filing a Title IX group complaint, like the ones being filed at Swarthmore and Occidental, is a shift in the paradigm of how victims are using the avenues available to them to seek protection and redress.   It's brilliant – it's loud and clear – and it's causing quite a stir.  You have a group of over 30 victims of sexual assault, all complaining the same school is ignoring what’s happening or treating the offenders with a mere slap on the hand.  It puts the problem of sexual violence on campus front and center.

Hopefully these cases will be successful and those institutions that push victims to meet behind closed doors to work things out with the person who raped them, and fail to take any significant action against the perp will be forced to change.  Clear policies and procedures to deal harshly with sexual violence in universities is necessary so that campuses are safe.  Kudus to those victims who are participating in these cases and are willing to take a stand for the rights of current and future students.