Actress Rose McGowan speaks at the inaugural Women’s Convention in Detroit on Oct. 27. McGowan recently went public with her allegation that film company co-founder Harvey Weinstein raped her. Paul Sancya AP
Actress Rose McGowan speaks at the inaugural Women’s Convention in Detroit on Oct. 27. McGowan recently went public with her allegation that film company co-founder Harvey Weinstein raped her. Paul Sancya AP

California Forum

Three ways Congress could make laws against sexual harassment actually work

By Erwin Chemerinsky

Special to The Bee

October 31, 2017 05:00 AM

UPDATED October 31, 2017 10:06 PM

Current law is clearly inadequate to deal with the problem of sexual harassment. The revelations of repeated harassment of women by Harvey Weinstein, Roger Ailes, Bill O’Reilly, Mark Halperin, James Toback and so many others demonstrates that the law against such conduct needs to be strengthened.

This, of course, is not just a problem in the entertainment industry. More than 140 women in Sacramento – including legislators, Capitol staff, political consultants and lobbyists – signed a letter describing a “pervasive” culture of sexual harassment and mistreatment that they have endured. The letter was signed by six of the 26 women now serving in the California legislature, two retired legislators, a Board of Equalization member, and officials from both the Democratic and Republican parties.

In a Washington Post/ABC News poll, 30 percent of women said they had experienced unwanted sexual advances from a man at the place where they worked, 23 percent of them from men who had influence over their jobs.

A Washington Post/ABC News poll taken in October found that 30 percent of women said they had experienced unwanted sexual advances from a man at the place where they worked, 23 percent of them from men who had influence over their jobs. But these incidents usually do not get reported. Of those who had experienced harassment, 58 percent said they had not reported the incidents to anyone in a supervisory position. Other surveys have indicated that more than 70 percent of women subjected to sexual harassment do not report it.

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Federal law does not explicitly prohibit sexual harassment. Title VII of the 1964 Civil Rights Act prohibits employers from discriminating on the basis of race, sex, or religion. Title VII applies to employers with 15 or more employees, including state and local governments. In 1986, the Supreme Court ruled that sexual harassment is a form of sex discrimination prohibited by this law. Employers can be sued and held liable for money damages for sexual harassment by their employees.

But there are serious deficiencies in the current federal anti-discrimination law. Title VII allows employers to be sued but does not authorize suits against the person who engages in the sexual harassment. The company that employed Weinstein can be sued under Title VII, but Weinstein himself cannot be held liable under this statute.

Title VII, which applies to employment discrimination in the workplace, likely would not apply at all to some of the sexual harassment that women in Sacramento endured. More generally, the possibility of suits against companies obviously has proved insufficient to prevent sexual harassment. Making the harasser personally liable for money damages under federal law could make a difference.

Also, all too often sexual harassment claims settle and a condition for the settlement is the parties must keep it secret. These confidentiality agreements keep the victims from speaking publicly about what they experienced and allows the harassing behavior to continue. According to the New York Times, Weinstein reached at least eight settlements with women who accused him of harassment. Confidentiality agreements were a common part of these settlements.

Former Fox News host Bill O’Reilly secretly settled at least six sexual harassment suits against him, with the largest being for $32 million. Some, or perhaps, all had confidentiality clauses as part of the settlement agreements.

Often there are arbitration agreements that require that employees submit their claims, even discrimination claims, to binding arbitration which occurs behind closed doors. Some believe that this has contributed to the prevalence of sexual harassment in Silicon Valley.

There are fixes to these gaps in the law. Congress can amend or add to federal anti-discrimination law by explicitly authorizing suits against alleged harassers. Also, Congress should prohibit confidentiality agreements in settlement of sexual harassment claims.

Publicizing sexual harassment settlements would likely deter wrongdoing and at the very least identify repeat offenders. If the first settlement agreement with Weinstein or O’Reilly had been public, surely it would have lessened the chances of repeated misconduct.

Likewise, Congress can amend the Federal Arbitration Act to make it clear that victims of discrimination, including those subjected to sexual harassment, can go to court and not need to use private arbitration.

These legal changes unfortunately will not eliminate sexual harassment. There remains the serious problem of victims not coming forward to report what they suffered, whether because of fear of retaliation or embarrassment.

But strengthening sexual harassment laws can make an enormous difference in protecting women, both in deterring wrongdoing and in compensating those who are victims.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.