A History of Sexual Harassment in the United States

This month, a number of women came forward with allegations that Donald Trump had sexually assaulted them, making sexually suggestive remarks and touching them in a sexual manner without their consent. Responses to these allegations varied largely along party lines, with supporters of Donald Trump dismissing the claims as fabricated and questioning why these women had kept their silence until now. That question, though potentially a red herring, is at least interesting to consider. Why would women who had clearly been wronged not tell anyone about the wrongdoing?

In several interviews Jessica Leeds, who alleges Donald Trump groped her breasts, kissed her, and attempted to reach up her skirt for several minutes on an airplane, has said she did not tell anyone of the incident. The reason: “We didn’t. Women didn’t at that point. I don’t even know if they do it now. But if I complained to my boss, he would have said that’s the rigors of the road, you’re a traveling sales rep.” By Ms. Leeds’ estimation, this incident took place in 1979.

Indeed a number of women who have come forward against Mr. Trump said they kept their silence because they were working with him in a professional capacity. From Rachel Crooks, who was a receptionist at Trump Tower, to Natasha Stoynoff, who was covering his marriage to Melania, all of these women kept their silence because they didn’t feel it appropriate to do otherwise for professional reasons. A closer look at historical trends in sexual harassment policy sheds light on this phenomenon.

The first major federal legislation protecting women from discrimination based on their gender manifested in the Civil Rights Act of of 1964, Title VII. The Act was primarily motivated by the Civil Rights movement of the 1960s and the Act’s inception was initially meant to prevent discrimination along racial lines. Gender discrimination protections were added to the Act because of the concerted efforts of women’s rights lobbyists at the time. However, it was broadly theorized that the amendment was added as a poison pill meant to kill the entire bill. The amendment was introduced by Howard (Judge) Smith (D-Va)–a notorious white supremacist–who upon introducing the amendment on the House floor read a constituent’s letter,

“I suggest that you might also favor an amendment or a bill to correct the present “imbalance” which exists between males and females in the United States….The census of 1960 shows that we had 88,331,000 males living in this country, and 90,992,000 females, which leaves the country with an “imbalance” of 2,661,000 females….

Just why the Creator would set up such an imbalance of spinsters, shutting off the “right” of every female to have a husband of her own, is, of course, known only to nature. But I am sure you will agree that this is a grave injustice to womankind and something the congress and president Johnson should take immediate steps to correct, especially in this election year….Would you have any suggestions as to what course our Government might pursue to protect our spinster friends in their “right” to a nice husband and family?”

Thereafter on the House floor, it was declared “Ladies Day,” and all participants in the jocular debate inevitably voted against the Act in its entirety. There is some debate as to whether the poison pill theory is true, but the Congressional Record undeniably reflects the mirth brought on by the amendment. Regardless the Act was passed and signed into law with the amendment, guaranteeing freedom from gender discrimination in the workplace.

And yet it wasn’t until 1986 that the first workplace sexual harassment case rose to the Supreme Court with Meritor Savings Bank v. Vinson. The facts of the case, briefly, were that Mechelle Vinson was hired to work at a bank and rose quickly through the ranks for approximately four years, after which she took an extended leave of absence and was fired. She sued the bank and her superior, Sidney Taylor, alleging he had “made repeated demands upon her for sexual favors, usually at the branch, both during and after business hours; she estimated that over the next several years she had intercourse with him some 40 or 50 times. In addition, respondent testified that Taylor fondled her in front of other employees, followed her into the women’s restroom when she went there alone, exposed himself to her, and even forcibly raped her on several occasions.” She sued under Title VII, claiming she did these things for fear of losing her job, and that Mr. Taylor had discriminated against her on the basis of her gender.

The District Court ruled against her, holding her willingness to participate was voluntary, and she was fully able to leave her position at the bank rather than obliging Mr. Taylor. The Supreme Court saw it differently, holding that Mr. Taylor had violated Title VII by harassing Ms. Vinson based on her sex and had created a hostile work environment, causing Vinson’s performance at work to degrade considerably and threaten her employment. The court also held; however, that Vinson’s manner of dress and attire were admissible evidence in determining whether Mr. Taylor’s sexual advances were welcome.

Progress was mixed. A year later, in 1986, the Fourth Circuit Court of Appeals ruled in Swentek v. USAIR, that a flight attendant could not sue for sexual harassment because her character had been questioned and her own use of lewd and suggestive language indicated she welcomed sexual interest from her coworkers. In this case, one instance of that harassment was alleged to have included the pilot, Jon Ludlam, “jump[ing] up in her presence on the registration desk at a hotel in Newark to “check out” the legs of the female registration clerk; and expos[ing] himself to her by dropping his trousers.

Returning to Jessica Leeds’ claims against Donald Trump perhaps we now have a greater understanding of why “women didn’t at that point.” Ms. Vinson lost her initial case in 1986, Ms. Leeds believes her own sexual assault by Mr. Trump took place in 1979.

Today, the state of harassment in the workplace is still of great concern.

The Equal Employment Opportunity Commission (EEOC) handles allegations of sexual harassment in the workplace today. They provide a 13 page guidance document elucidating the case law dating back to Vinson, and clarifying the standards a plaintiff must meet to successfully sue. Per the document, the plaintiff must demonstrate that the conduct was unwelcome, must demonstrate evidence of harassment, and must demonstrate the work environment was made hostile by the harassment. Finally, a plaintiff also has less than a year to file a sexual harassment claim.

The result of this process is that many allegations of sexual harassment go unreported. The Bureau of Justice Statistics estimated there are over 43,000 workplace rapes and sexual assaults per year, but there were only an average of 7,379 sexual harassment claims filed with the EEOC over the last six years. This disparity evinces advocate claims that the process’ opacity, and workers’ ignorance of their rights leads to severe underreporting of workplace sexual violence. Furthermore, last year of the 6,822 claims filed, only 1,829 claims–that’s 25.1%–were resolved in favor of the charging party. Additionally, charges were perhaps expectedly filed mostly by women, with 82.9% of charging parties in 2015 listed as female.

Therefore, even if women do know their rights, and are able to navigate the litigious process, they face only about a one in four chance of seeing their case decided in their favor.

There are no updates to sexual harassment policy pending in current federal legislation, however certain states such as California continue to make efforts to improve their policies. The California Department of Fair Employment and Housing (DFEH) had already required since 2004 that employers with 50 or more employees hold biennial sexual harassment prevention trainings. However, the Fair Employment and Housing Commission released even more aggressive standards, that were implemented in April of this year.

These updated requirements require California employers to create a written harassment, discrimination, and retaliation policy. Their policy must guarantee employees confidentiality in the reporting process and an impartial staff member to file complaints with. Disputes must also be resolved in a timely manner and supervisors are required to report instances of sexual harassment they gain knowledge of. DFEH may seek non-monetary remedies against an employer who fails to comply.

Reviewing the history makes it plain to see why women like Ms. Leeds didn’t report instances of sexual violence; the policy mechanisms weren’t there for them at the time. Though our institutions have made undeniable progress, the data, and the stories of women who continue to come forward against Mr. Trump, tell us we still have much work to do.

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