Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Wednesday, February 7, 2018

Many Hurdles to Legal Remedies for Sexual Harassment

Legal Remedies for Sexual Harassment are Few and Far Between

Despite the torrent of attention being paid to sexual harassment and discrimination, the legal system in place to respond to related claims has not changed. Many have been inspired to seek legal action only to learn that it’s probably too late to file a lawsuit. Others are coming to attorneys seeking the swift consequences being dealt out to men in the public eye, and they are learning instead that in most cases, speaking up is just the first step in a difficult process that can last months or years — with no guarantee of a resolution.


“Attention to the issue always helps, but there is no silver bullet, no overnight change where suddenly this becomes easy,” says Emily Martin, general counsel for the National Women’s Law Center.


Her organization is administering the “Time’s Up” legal defense fund, an effort by celebrities and activists to connect those who have experienced workplace sexual misconduct with legal aid. Since the fund was announced on Jan. 1, more than 1,000 people have requested its assistance.


A spokeswoman for the Equal Employment Opportunity Commission (EEOC) says that agency, too, has been “inundated” with requests. At the San Francisco-based nonprofit Equal Rights Advocates, a new intake system is being installed to handle the increasing volume of harassment claims.***


But in many states, even if only a single year has passed, it’s too late. The federal deadline to file a written charge of discrimination with the EEOC — a required prerequisite for suing under federal anti-discrimination laws — is 180 days, sometimes extended to 300 days based on state law.


For those who find an attorney to take their case — something that’s far more difficult for low-wage and undocumented workers — the challenges ahead are significant, even if there’s documented proof, witnesses and other elements of a winnable lawsuit.


If victims are looking for new employment, Katz warns them that human resources departments are typically wary of people who have taken their former employers to court.


“Even if they have the most meritorious of claims, they will be perceived as unsuitable or not given real consideration,” Katz said.


It’s probably beneficial for victims to seek counseling or therapy — but first, their attorneys caution, they should know that what they say to a therapist can end up in the hands of their former employer and be used against them in court. When a person sues for emotional damages, the opposing counsel can request to examine their entire mental health history.

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