Women In Listed Derivatives, aka WILD, held a workshop on “Sexual Harassment at Work in the #MeToo Era” on Thursday at Chicago’s Union League Club. The good news is that it was well attended and very participatory; the audience listened avidly to Jennifer Gilbert, an attorney with the employment discrimination firm Stowell & Friedman, and asked a great many questions and follow up questions.
The bad news is that even though the raucous, anything goes atmosphere of the old trading floors is all but gone, sexual harassment is not. The types of sexual harassment Gilbert outlined were familiar to the women in the audience in one way or another from both long past and recent events, including the Brett Kavanaugh hearing that was then taking place (the WILD event was scheduled well before the hearing).
Title VII prohibits sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is “unwelcome and intolerable,” Gilbert said.
But proving harassment is problematic partly because it’s on a case by case basis, requiring a fact-specific analysis, and rarely is there a witness or “smoking gun” evidence.
Gilbert said she has seen more complaints of sexual harassment brought lately, in particular from higher level executive women.
There are a number of obstacles to pursuing a case of this type. Gilbert echoed a sentiment I’ve seen in a number of articles recently, that “Human Resources is not your friend,” if you’re an employee claiming sexual harassment or discrimination. HR is hired by the company and works for them. They must investigate such claims, but more often than not it is the victim of the harassment who get the worse end of the deal.
For one, during the HR investigation process, everyone in the office may find out who made the complaint – and they may not be at all supportive. Also, the person accused of harassment (including a boss or higher-up) could bad mouth the complainant without any repercussions.
And historically the woman is almost always the one who is moved to a different department or job or even out of the company, while the harasser remains in power.
There is a heightened sensitivity to this issue in the “#MeToo era,” of course, but it often goes no further than a company putting a sexual harassment policy in place – mostly for the “optics,” Gilbert said.
In addition, time is not on the woman’s side. A victim has only 300 days from the date of the last alleged act of harassment in which to file a charge with the Equal Employment Opportunity Commission, according to Gilbert.
Of course, men can be victims of sexual harassment too; it is just less common.
So what can or should victims of sexual harassment do?
One crucial move is to document everything.
“Do not delete texts!” Gilbert said. “And take screen shots!” Also, confide in people you trust during the time the harassment is taking place. Texts make excellent evidence and confidants can be witnesses.
Another option is to stand your ground. Sometimes you can say, “That’s inappropriate,” to sexually suggestive remarks by a boss or co-worker – even if they occur outside the office.
A victim has a bit more leverage if a company retaliates against her for making a sexual harassment claim, Gilbert said, because a retaliation claim is much easier to prove.
“All you need to prove is that you have suffered adverse employment action as a result of engaging in the protected activity of making a complaint of discrimination or harassment,” she said.
Before taking any action, you should consider what your goal is. In most cases, Gilbert said, a lawyer is your best ally.
Also, you do have choices – you can take some control over your departure, if it comes to that, or you can let the company fire you.
Nevertheless, even though it may seem as though the pendulum has swung over to the side of women these days, it hasn’t moved as far as many people think for victims of sexual harassment.