The scandals involving Harvey Weinstein, Silicon Valley and Fox News have shone a spotlight on corporate tolerance of sexual harassment by executives. The U.S. Supreme Court recognized people could sue for such harassment more than 30 years ago. But at least 25 percentof women say that they are still harassed in the workplace. So, why does sexual harassment persist? A surprising part of the story lies with federal judges. Despite coverage under the law, when an employee alleges sexual harassment, a judge will likely dismiss the case.
Let’s look at the facts of some dismissed cases: co-workers and a supervisor engaged in conduct toward a female employee, such as making comments about the worker’s breasts, requesting to lick whipped cream and wine off of her, and rubbing her shoulder, arms and rear end; a supervisor asked a female worker to go to hotel room and spend the night with him, asked her for a sexual favor, constantly referred to her as “Babe,” and unzipped his pants and moved the zipper up and down in front of her; a supervisor told a worker she had been voted the sleekest posterior in the office and on another occasion deliberately touched her breasts with some papers he held in his hands.
In deciding whether to dismiss a case, a judge examines the paper records of the evidence — a written account of what the witnesses will say and relevant documents. Using this information, if the judge thinks a reasonable jury could not find for the employee, then the case is dismissed. When employers request dismissal of discrimination claims, including harassment claims, more than 70 percent are dismissed in whole or in part, according to a 2007 federal study.
This high dismissal rate should give us pause to consider whether judges are making the right decisions. Judges are not supposed to dismiss cases based on their own opinions of the evidence. But, their own opinions are all they have, and a judge’s opinion may differ from a jury’s. A 2015 Columbia Law Review study showed this. It examined cases where judges dismissed cases, appellate courts subsequently reversed those decisions, and juries ultimately tried the cases. In 25 percent of these cases, juries decided the opposite of what the trial judge had said the jury could find.
For structural reasons, judges are more likely than juries to reject claims of sexual harassment. First, the judiciary is not as diverse as the general population. For example, most federal judges are men — people whom studies often show are not as empathetic toward claims such as sexual harassment. Many federal judges also come from privileged backgrounds, possibly viewing situations differently than many people from the community. Second, most judges — unlike jurors — do not deliberate together and thus will not consider different perspectives. Third, judges are subject to pressures to dismiss cases. They must report the number of requests for dismissal that they have not decided, and unsurprisingly more dismissals occur when those reports are due. Finally, judges may want higher positions in the judiciary or elsewhere, which can influence their decisions.
Sexual harassment is only part of the story.
Courts also regularly dismiss horrific cases of racial harassment. An example includes where: plaintiff testified he saw displays of the rebel flag on tool boxes and hard hats, the letters “KKK” on a bathroom wall and on a block-saw console, and a noose in another employee’s locker; another supervisor told him that if he looked at “that white girl” he would “cut” him; another supervisor called him “black boy” on one occasion.
More than 25,000 charges of workplace harassment are filed with the Equal Employment Opportunity Commission each year.
The founders thought judges could not fairly decide cases like this, and consequently, vested juries — not judges — with decision-making authority.
If a shift to juries were to occur, then the sexual harassment that persists in companies will be subject to more public exposure and perhaps less of this bad corporate behavior will be tolerated in the future.
Suja A. Thomas is a professor of law at the University of Illinois College of Law. She has co-authored “Unequal: How America’s Courts Undermine Discrimination Law” with Sandra Sperino (Oxford University Press, 2017). David Lopez is the former general counsel of the Equal Employment Opportunity Commission and a partner at Outten and Golden, in Washington, D.C.