How can we legally eliminate victim blaming?

My story shows that school district’s conduct weak sex discrimination practices.  To resolve this, I suggest the following: 

All K-12 private and public schools, colleges, and universities’ sexual harassment allegations must be public record with all staff names left out but the institution’s policies, practices, and investigative methods clearly visible. Such transparency will check the investigating agent and school board acted impartially and practiced best practices. 

Each investigative report should be made open after the statute of limitations has expired for the survivor to file a lawsuit. Within this time frame, all parties involved have the chance to determine and present what took place, in what is hoped to be a thorough and impartial process. Should the survivor be too afraid, intimidated or disempowered to move forward legally themselves with a lawsuit, the company is still held accountable on some level for allowing injustice to go unchecked.

I believe this open record accountability should be extended to public spheres and private sectors who have more than 15 employees. If school districts, who assert they value equality, equity, and ending bullying, practice inequity, discrimination, and mobbing, the private sector, with a much more fluid value system, can as well. If school districts, who were founded historically on the idea that citizens should use their knowledge and training to promote republic ideals, keep survivors from silently practicing civic duty in order to shield themselves from liability, the private sector can as well.  Businesses who value equality, equity, and civic duty, should readily welcome this practice. To decline to do so serves only to further their interests.

Cases that are ruled “substantiated” can be settle and sealed. Any dollar amount exchanged in this settlement, is to be viewed as restitution for the company’s discriminatory sexual harassment practices. Companies who settle, however, will have to note the number of cases that have been substantiated and settled. They also have to publish what changes were made within the company after this substantiated sex discrimination charge to ensure the injustice will not happen again. This will give an accurate picture to future employees who inquire on the nature of a company’s sexual harassment policies and practices before accepting a contract with them.

Companies that wish to seal “unsubstantiated” cases can do so only if they agree to remove the survivor from all non-disclosure statements involving the company’s reputation.  In other words, the survivor can openly talk about the company’s practices without using any staff member’s names. The company would have to note publicly the number of unsubstantiated cases they have sealed through waiving an employee’s non-disclosure statement(s).

Companies do not use the same verbiage when communicating the results of their sexual harassment investigations, thereby making it difficult to dispel the “false reporting” argument. To resolve this, the EEOC should require companies rule a sexual harassment charge as one of four categories:

When evidence proves sexual harassment occurred, the company should issue a “substantiated” verdict. When there is not enough evidence to warrant a sexual harassment charge, the company should issue an “unsubstantiated” verdict. Ruling a case unsubstantiated compared to “not sexual harassment” implies the survivor was dishonest or was somehow wrong in their assessment, when, in fact, their case simply became a “their word against mine” situation. Cases that locate evidence which prove the employee is lying should be deemed “unfounded” while reports that do not meet the qualification for sexual harassment should be classified as “baseless.” Using these four labels (substantiated, unsubstantiated, baseless, and unfounded) will make sure statistics on false reporting accurate.

During a sexual harassment investigation, a survivor must file multiple reports to present their evidence of what took place. This narrative is given to the company’s human rights office and later to either the state’s Department of Labor or the federal government’s Equal Employment Opportunity Commission. In each instance, the survivor discloses their side of the story, revealing the who, what, when, where, and why of their narrative. Amid the survivor’s transparency, however, the company’s actions are legally allowed to remain totally secretive.  They do not have to explain what they knew, when they knew it, and how they responded to it. In fact, for general bullying complaints, the company can completely ignore the employee’s complaint (I know because I filed a bully complaint that was completely ignored by my district). This information can only be discovered in court when the employee files a lawsuit against their company. Only then can the survivor understand the full scope of what took place.  Their employer, in the meantime, has the opportunity to prepare their defense (i.e. discredit the survivor’s witnesses, gas lit witnesses into remaining silent, etc.)

For my own narrative, I still have plenty of unanswered questions. I do not know if my perpetrator contacted the teacher’s union regarding the matter. I do not know if the Department of Labor contacted my employer when I reached out to them in 2018 before I filed my formal internal complaint. I do not know if the other employee who was sexually harassed and gas light by my company is safe. And, in the absence of transparency, I do not know how to rebuild trust with a company who seems more interested in protecting themselves than in reconciling with and caring for their employee. Such trauma helps me understand why many sexual harassment survivors chose not to report their sex discrimination and just leave their employer quietly. Putting themselves out there legally and then being completely ignored is simply not worth jeopardizing their time, energies, or mental health. Leaving and finding a new job, meanwhile, at least offers the promise that their new administration will be more conciliatory.

To even the playing field legally, I propose mandatory investigations of any general bullying complaint. An employer should be required to respond, at an internal level, to any and all employee complaints. The company cannot demand survivors encounter another layer of trauma by proceeding publicly in court. They should not be told silently the message that “This is how we roll. If you do not like it, find another job” or “Good luck in court.” They must, by law, be required to practice a basic ethics of care that responds to the evidence brought forth by the survivor. They need not jeopardize the survivor’s mental health, finances, and family wellbeing in the interest of avoiding liability. They need to honor the survivor’s privacy just like they demand the survivor does when they sign non-disclosures clauses.   

This policy of mandatory investigations includes complaints that fall outside of the protected discrimination classes. In other words, companies must investigate workplace mobbing and general workplace bullying complaints. Mobbing and gas lighting are real bully tactics that intimidate and traumatize working Americans. Employees who experience or witness these tactics are less likely to report any sort of discrimination to administrators (be it by race, color, national origin, religion, sex, age, or disability) for fear they will be mobbed and gas lit themselves. Legally allowing companies the right to ignore employees who may in fact have been mobbed, is an injustice and it keeps employees powerless to stop any form of corruption they observe or learn about. Both mobbing and gas lighting, then, need to be against the law and, at the very least, a company must be required to investigate these injustices when an employee comes forward with accusations they have occurred. 

Not every sexual harassment survivor will report their sex discrimination. Once survivors encounter sex discrimination, their evaluation for what to do becomes personal, customized to their own unique personalities, histories, goals, worldview, and circumstances. They do not just evaluate their harassment from a legal perspective. Their professional, social, personal, and cultural factors influence their decision making. Their determination on whether to report their harassment becomes a sort of “life or death” scenario where the survivor considers how bad the harassment is (i.e. what they are willing to tolerate and what they are not willing to tolerate) and how much they are willing to sacrifice to stop it (i.e. risk losing perceived aspects of their professional, social, personal, and cultural lives). Some may not feel safe reporting their harassment. Others may and decide to report their discrimination. Some employees may tolerate what they view as “common” or widespread sexual misbehavior. Others do not and report what is, according to the law, illegal behavior. Weighing these factors is extremely personal and, in a historically individualistic culture, is not usually one that considers how the discrimination impacts the entire workforce or collective community. 

Should the survivor report their harassment? Absolutely. They are fighting a wild beast that will roar its ugly head again and this time their injury may be worse. Their predator’s next target may be someone they love in their herd too. Do they have the moral responsibility to report it? Yes. Americans in and outside the company need them to stop a dangerous predator. Should they be condemned for not doing so. No. Their decision was based on the perception that their company, community, and culture would mishandle their report. Somehow they got the impression the costs outweighed the benefits. 

To counteract their fear and personal reasons, the law needs to add a layer of collective responsibility. Any employee who encounters, observes, or hears secondhand information about sexual harassment can choose to report it, even if the survivor is unwilling to do so.

An example illustrates why this inclusion is a best business practice:

Imagine that three colleagues are working on a project together when one employee, a sexual predator, tells the female colleague in the room that he would love to touch her breasts and kiss her lips. The third colleague in the room hears the predator’s remarks and after the meeting, goes to the woman and asks her if she is okay. She says she is and that it has happened before, but then dismisses the comment with a “boys will be boys” remark. The third colleague knows otherwise, however.  He knows what he heard was sexual harassment, and it made him uncomfortable. After rereading the company’s policy, he confirms it was sexual harassment. He knows if he does not report it, a sexual predator will prey on another target. She seemed okay with it, however. She seemed like she was not going to report it. Now he wonders if he can report it without her consent? Will he somehow break her privacy if he goes and reports it without her? Wait. He remembers that the company policy states he can come forward with any sexual conduct he observed or became aware of that made him uncomfortable. He feels safe going to administration with his concern as he has had positive experiences with supervisors in the past. Personally, his children are full grown, and he and his partner have discussed moving away from their miserable, cold winters. He closes his lab top and heads towards his supervisor’s office.

Sexual harassment is every American’s problem. It should not be resolved by one individual then. Collective culture messages determines who or what is to blame for sexual harassment. The collective community sets the group norm for what is and is not “offensive” sexual behavior and for when it is and is not appropriate to whistle blow. Americans must accept that each survivor approaches sexual harassment in very unique, contextualized manner. For this reason, legislators must shift the reporting responsibility from the individual survivor to the collective community. Employees and customers need to be told that anyone who experiences, observes, or hears about sexual harassment can report sex discrimination. They need to know legally that doing so does not violate a survivor’s right to privacy. Anyone who is uncomfortable with someone's actions can file a sexual harassment report.  Without this group norm, our collective community will never reduce the number of unreported sexual harassment cases, and in the end, the collective community will suffer. 

Employees involved in sexual harassment investigations face many challenges, and, from my experience, they carry this heavy burden without much support from their companies. An affidavits of rights would alleviate some of this load for both the accused and the accuser. This list of rights will be presented to both parties either during an annual employee training or after the initial report that begins the investigative process.

To empower both the accused and the accuser as they seek legal counsel, the company must provide both employees with a list of law firms the company has used in the past. This will save both parties from having to contact lawyers, tell them their story, and then be told “we cannot represent you because we have a conflict of interest.” This practice will guard their story, reducing the chances of them feeling revictimized, and reduce the possibility that the law firm can share their story with their company.

The company will, by law, tell the accused and the accuser parameters for discussing their sexual harassment after the investigation.  They will be told they can state in the work environment, “I am a sexual harassment survivor. I am uncomfortable with this situation. Please stop.”  or "I have experience with sexual harassment.  I am uncomfortable with this situation.  Please stop." 

The company will, by law, tell employees they can file a complaint with someone who is not their immediate supervisor. This goes for retaliation complaints the accused may file as well.

The company will, by law, tell both employees they can petition their state’s Department of Labor or the Equal Employment Opportunity Commission should they feel unsafe after an internal report. 

The company will tell both employees they cannot be removed from their position for filing a sexual harassment complaint or a retaliation complaint.

The company will, by law, tell all employees the difference between venting and gossip, between a good faith report and a false accusation.

The company will, by law, have a policy on how employees can handle perceived deception.

The company will meet with both employees afterwards to determine if retaliation has occurred.  

The company will ask employees who report a staff conflict if they feel safe.

You can locate your US Congressional Representative(s) here.

You can locate your US Congressional Senators here.

Yes.  Please fill in the blanks according to your needs and ideas:

Dear [THEIR NAME],

I am writing to request you reform our country's sexual harassment laws. I believe our current system is weak.  It is unacceptable that.... STATE WHAT PARTS OF OUR COUNTRY'S SYSTEM YOU FIND UNSATISFACTORY.  Legislation should be written to solve this issue.  YOU CAN COPY YOUR IDEAS FROM A WEBPAGE OR PROPOSE YOUR OWN IDEA.  

Thank you for serving our country and its citizens.

YOUR NAME

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