19:38, October 20 63 0 theguardian.com

2017-10-20 19:38:02
#metoo is raising awareness, but taking sexual abuse to court is a minefield

Global fascination with the fallout from the Harvey Weinstein revelations has focused on Hollywood, as well as parallel scandals in international sport and the music industry, but the #metoo stream on Twitter has dragged attention to less glamorous workplaces, highlighting how difficult it is for women to raise these cases, even in countries with strong legislation on sexual harassment.

The outrage has already prompted women in all sectors to seek legal advice about how to pursue sexual harassment claims. “We’re getting many more calls since the recent scandals; women are standing up in solidarity,” said Silvia Stanciu, an employment attorney specialising in discrimination for New York law firm Phillips & Associates.

The crisis in Hollywood is merely the most eye-catching manifestation of a long-ignored problem worldwide. International research suggests workplace sexual harassment is most prevalent in sectors which rarely make headlines in this context – particularly in male-dominated areas like engineering and construction, the military, finance, transport, and in areas of minimum wage work where women are in public facing roles, care-workers going alone into people’s homes, cleaning staff in hotels, bar workers and shop assistants.

But while there is some optimism that the prolonged attention concentrated on the issue may be prompting changes in attitudes, there are still huge hurdles for women around the world if they want to take sexual harassment cases to court.

The most comprehensive EU-wide study on sexual harassment, (based on interviews with 42,000 women, across 28 member states, and published in 2014), showed that between 45% and 55% of women had experienced some form of sexual harassment since the age of 15. It also revealed that only 6% of women report serious sexual harassment to colleagues, only 4% contacted the police, and less than 1% spoke to a lawyer.

Lawyers point out that having strong anti-discrimination legislation is only the first step, since without proper support few women will want to risk their careers and financial security to take legal action against an employer. Basic problems of imbalance in risk remain; most crucially, employers are more likely to have legal representation than complainants.

Jane Pillinger, an academic who has written reports on the international state of sexual harassment for the UN’s International Labour Organisation and the TUC, said she wanted to believe that things could change because of the strength of recent anger.

“Sexual harassment in the workplace was a very big issue in the 1990s, the trade unions were working on it, a lot of people were talking about it but then it just dropped off the priority list. Maybe some people felt the issue had been dealt with.” Workplaces changed, nude calendars and page three pin-ups disappeared from the walls, she said, “but sexual harassment never went away, it just became more hidden and more subtle”.

Although, with the increase in the numbers of women in the paid labour market over the last 30 years, attitudes to the problem have evolved (from the the 1970s, when according to the ILO it was seen as a widely tolerated aspect of working life, and “an occupational hazard”), there remains a huge reluctance to report abuse.

“Women saw other women reporting, and they saw it was an absolute disaster for them, because they usually were the ones that lost their jobs, so they didn’t report. The #metoo campaign has shown that women have been silent on this for decades because they know that if they complain or raise their voice, they are ridiculed or experience retaliation or discrimination in the workplace,” Pillinger said.

In the UK, the definition of sexual harassment was clarified by the 2010 Equality Act, and centres on behaviour that makes an individual feel “humiliated, offended or degraded” and on “unwanted behaviour of a sexual nature”, which encompasses sexual jokes, touching, and sending emails of a sexual nature or putting up pornographic pictures; a claim that a comment was meant in jest or as a compliment is not a defence. Research conducted by the Trades Union Congress last year indicated that 52% of all women had experienced some form of sexual harassment, and 80% did not report the abuse to their employer; among women and girls aged 16-24, the proportion stating they had experienced sexual harassment rose to 63%

Jane Amphlett, head of employment at the UK law firm Howard Kennedy, said she was hopeful that the Weinstein accusations would prompt a sea-change in people’s readiness to report abuse. “After Weinstein, it feels like there is a groundswell of people feeling that they can speak up and say this should not be tolerated. There is force in numbers. The more perpetrators are called out about this abuse of power, the less prevalent it will become.”

But she also acknowledged the difficulties in coming forward. “Although the law is there to protect the victims of harassment and those who speak up on their behalf, it can’t always fully protect them from the consequences of putting their head above the parapet.” When she advises clients on whether to pursue a case, she feels obliged to inform them of potential risks. “What action they take will depend on their resilience and state of mental health, how confident they feel in their ability to raise the issue, how confident they feel in their career, and their resources to fund any potential loss of income or, if necessary, to pursue the claim.”

Rates of recorded sexual harassment across Europe vary in unexpected ways with much higher levels registered in Denmark, Sweden and France (it is not clear whether this is because of greater awareness of the issue or because the problems are more widespread). Some countries have devoted more attention to addressing the problem. France was one of the first countries to include sexual harassment in the criminal code; in most countries it is part of health and safety legislation, equality law or the labour code, so allegations are not dealt with under criminal law, Pillinger said. Spain has a requirement that all companies should have protocols on gender harassment, including confidential complaints committees.

The legislation in the US remains quite vague, according to David Sherwyn, a law professor and labour relations expert at Cornell University, and is hampered by the absence of a federal law against sexual harassment. The milestone Civil Rights Act 1964 prohibits employers from discriminating based on race, colour, national origin, religion or sex, via its Title VII section, but this covered basic hiring and firing “in the Mad Men generation”, not sexual harassment, he said. The concepts of a hostile work environment and the sex-in-return-for-advancement style of power bullying were codified later by the Equal Employment Opportunity Commission.

For US women, there is also widespread reluctance to take cases to court. The legal process can be protracted and unpleasant, said Stanciu, the employment lawyer with Phillips & Associates. “Litigating sexual harassment cases can take three to eight years and if they go to court and their allegations become public, plaintiffs fear they may not be hired again. Internally, there’s the stigma of being a ‘complainer’.”

“Retaliation for bringing a complaint is illegal but it’s also very common,” said Emily Martin, vice-president for workplace justice at the US National Women’s Law Centre. “There are real risks of burning bridges and you can’t promise a woman that if she brings a complaint nothing bad will happen.” She said surveys showed that at a minimum one in four women experience harassment in the US workplace; only three out of 10 who experience harassment make an internal complaint, and one in 10 files a lawsuit.

But she too was hopeful that the Weinstein scandal might trigger positive change. “There’s a surge in women talking about harassment; employers cannot ignore this because it may turn into both a legal and PR liability,” she said.