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Reporting and Retaliation: Exploring the Complexities of Compliance

Posted by On Tuesday, July 7, 2015

Last week, Alexandra Brodsky, co-founder of Know Your IX, published an article in Feministing.com  titled “We need to make workplace sexual harassment easier to report,” focusing on low-wage earning women’s experiences with sexual harassment and reporting in the workplace.   The article posits, “here’s the truth: we haven’t provided women facing workplace harassment with the protections from retaliation that they need to speak up safely.”

Both Title IX and Title VII prohibit sexual harassment in the workplace, including retaliation against those who complain.  However, according to Brodsky, the fear of retaliation is not something that can be fully mitigated by these laws.  It appears that many victims’ fear is justified, as retaliation against reporters of harassment or assault is extremely common with retaliation being the number one complaint at the Equal Employment Opportunity Commission.

Brodsky argues that social and financial factors also influence a victim’s willingness – or even ability – to report sexual harassment. Specifically for non-English speaking women, immigrants, and those who are isolated in their jobs, the harasser holds a great deal of power and control over the victim.  Many victims of workplace harassment and retaliation need their jobs to keep themselves and their families alive.  They are often not earning a living wage, being paid under the table, and working overtime without compensation.

Brodsky suggests that to find a real solution to workplace sexual harassment and the lack of reporting, low-wage workers must earn a living wage and have equal legal protection regardless of citizenship status.  The fear of retaliation and a lack of trust in proper claim investigation have contributed to the 70% of folks who have been sexually harassed by a co-worker, boss, or other superior, saying that they never reported it, as reported in a 2013 HuffPost/YouGov Poll.

This sounds extremely similar to the experiences of survivors of sexual assault on college campuses.  Title IX and the Clery Act prohibit retaliation against reporters of sexual assault, as it violates an individual’s right to be free from a hostile educational environment. In its comments on the final regulations, the Department of Education admitted it did not have the authority to assure complainants they would not be subject to an investigation of their immigration status, but warned schools that “threatening an individual with deportation or invoking an individual’s immigration status in an attempt to intimidate or deter the individual from filing or participating in a complaint of dating violence, domestic violence, sexual assault, or stalking would violate the Clery Act’s protection against retaliation . . .” (see p. 62772).

A 2015 campus climate survey administered at the University of Michigan found that only 3.6% of students who experienced an unwanted sexual experience reported it to an official university resource.  The problem isn’t isolated to one university.  The Bureau of Justice Statistics’ recent report estimates that 80% of rapes or sexual victimizations against college women go unreported to the police – with 1 in 5 victims saying “fear of reprisal” was a reason they didn’t report.  The Maryland Coalition Against Sexual Assault reports “fear of reprisal” as the number one reason survivors of sexual assault don’t report the incident.

There are two major questions that come out of this information.  First, do people at your organization or institution know that Title VII, Title IX, and the Clery Act prohibit retaliation?  If they do, what is being done to ensure their safety from retaliation outside of the legal language?  It is imperative to create a safe and accountable environment that supports targets of sexual harassment and sexual assault.  Ideally, trainings, courses, and educational experiences will stop sexual assault and harassment before they begin.  However, by only focusing on prevention, we run the risk of ignoring the reality of the situation.  Sexual assault and harassment are happening daily, and when someone is brave enough to report the incident, it is the responsibility of the institution or organization to have a culture of support.

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