This piece appears in the Winter 2016 issue of Ms. Subscribe today to get a copy and become a member of the Ms. community!
In the days after a video went public of Donald Trump bragging that he routinely forced himself on beautiful women, and as 14 women came forward to report that the presidential candidate had made unwelcome sexual contact with them, millions of women joined a grassroots social media movement using #notokay to demonstrate the everyday, constant nature of sexual assault and harassment, including at work.
The revelations about Trump came on the heels of serious allegations against his close adviser, former Fox News CEO Roger Ailes. This past summer, former news anchor Gretchen Carlson sued him for retaliation after he demoted, then fired her for refusing his sexual propositions. The suit set off an avalanche of disclosures about Ailes’ sexual misconduct over the past four decades, including quid pro quo harassment in which he demanded sexual relationships in exchange for job protection.
However common, “locker-room talk” and demands for sex from subordinates are both clearly against the law. Unlawful sex discrimination includes the creation of a sexually hostile environment through sexist, demeaning and sexually aggressive statements like those Trump has made, and quid pro quo harassment like that perpetrated by Ailes. Anti-discrimination laws also make it unlawful to retaliate against women who reject sexual demands, object to working in a sexually hostile work environment, or complain either internally or to agencies like the Equal Employment Opportunity Commission about such conduct.
Despite these laws, sexual harassment routinely goes unreported. Like many victims, the women targeted by Ailes and Trump described feeling shocked, ashamed and helpless. While sexual harassment is a widespread phenomenon, the unlawful conduct often takes place when the harasser and his target are alone, and harassers know that secrecy creates its own powerful suppressive effects.
Victims fear, often correctly, that if they come forward they will not be believed, nothing will change or they will suffer retaliation. When a People magazine reporter told her bosses that she had been assaulted by Trump during an interview in 2005, she was taken off the Trump beat and the story was published without mention of the incident. This fall, Trump announced that he plans to sue all the women who aired their allegations about his sexually predatory behavior.
In the Ailes case, Carlson was ultimately terminated after refusing his unwelcome sexual advances. Despite the vindication of her $20 million settlement with Fox, Carlson saw Ailes walk away with twice that sum, straight into a job with a presidential candidate.
Discrimination law prohibits retaliation, but correcting retaliation that has already occurred is not enough—the harms have already come to pass. Employers must enforce zero-tolerance policies for retaliation in order to send a strong signal that such behavior is unequivocally unacceptable and that reporting will never cost more than it is worth.
Other deterrents to reporting are created by the legal system itself, such as the mandatory confidential arbitration clause that nearly prevented Carlson from bringing her claim in court. Fox News, like many employers, required Carlson to submit any discrimination claims to an arbitration process, legally preventing her from pursuing those claims in court. Carlson’s savvy choice to sue Ailes in his personal capacity under state law brought her claim outside the terms of her employment contract, but many harassment victims are not able to use this workaround.
Mandatory arbitration harms individual victims, who lose access to jury trials and the leverage of public exposure that can incentivize employers to settle strong claims. It also denies the public information about the practices of our corporate citizens. Legislators have begun to recognize the corrosive effect that such clauses have on our antidiscrimination protections and are moving to prohibit their use. Carlson has lent support to ongoing efforts by Sens. Patrick Leahy (DVt.) and Al Franken (D-Minn.) to limit the use of arbitration provisions.
Ailes’ behavior, like that of Trump and countless other men in the workplace, has been enabled by legal and cultural forces that push women’s experience of harassment into the shadows. The women who have come forward are a reminder that speaking truth to power is its own power, despite the costs.
Hannah Alejandro is an associate at Katz, Marshall & Banks.
Debra Katz is a founding partner of Katz, Marshall & Banks.