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We Can’t Stop Sexual Harassment Without Addressing Retaliation

Last October, a Google spreadsheet crowdsourced by anonymous contributors started circulating among female writers and journalists. It contained the names of men in media and publishing who were alleged to have engaged in a range of sexual misconduct, ranging from inappropriate comments to assault. Even as the spreadsheet – known as the “Shitty Media Men” list — went viral and became public, the original creator of the spreadsheet remained a mystery until last week. Moira Donegan revealed herself before she could be outed as the creator by a media outlet.

Exposing Harassment Means Serious Consequences For Victims and Allies

Stories like this are happening all over the country in all kinds of workplaces. Men harass, threaten, stalk, and assault women, LGBTQ people, immigrants, and people of color in the workplace. Often employers don’t take complaints seriously when individuals gather the courage to come forward, or employers look the other way because the harasser is a superstar, or because the customer is always right. Women and other vulnerable workers develop informal networks to warn and protect each other about harassers and predators in the fields, kitchens, and conference rooms. The only difference here is that instead of being whispered, the stories about men in media were written down and became public.

Moira was brave to come forward as the creator of list intended to help other women stay safe and hold men accountable for their unacceptable — and in some cases unlawful behavior — which often went unchecked. She was brave not just because she subjected herself to a barrage of negative and hateful comments and threats, but also because exposing harassment and predators often comes with significant adverse workplace and career consequences. (Moira’s termination from The New Republic is the subject of a legal dispute.)

In fact, fear of losing a job and otherwise hurting their careers is a major reason why many victims of harassment and assault, and bystanders who observe this behavior, never come forward. And this is despite the fact that it’s against the law for employers to punish workers because they speak up against harassment.

Retaliation Is Illegal

Our civil rights laws, like Title VII of the Civil Rights Act of 1964, protect individuals from workplace discrimination based on their sex, race, national origin, or religion, among other characteristics. But they also protect individuals from retaliation: that is, when an employer takes an adverse action against an employee because he or she is asserting rights under the law.

Workplace retaliation is a significant and widespread problem. It’s the most frequently alleged basis of discrimination in claims to the U.S. Equal Employment Opportunity Commission (EEOC) — nearly half of the approximately 90,000 EEOC charges filed in FY 2016 alleged retaliation.

An employee’s assertion of rights is considered “protected activity” under Title VII, and can take two forms: (1) an employee is participating in a process to challenge discrimination or enforce rights; or (2) the employee is opposing unlawful activity that he or she reasonably believes constitutes discrimination.  Examples of the first kind of protected activity include when an employee files an internal complaint with her employer to challenge discrimination or harassment; files a charge with a civil rights agency like the EEOC; or serves as a witness in a complaint proceeding. Opposing discrimination can mean complaining or threatening to complain about alleged discrimination against oneself or others; resisting sexual advances or intervening to protect others; or talking to coworkers to gather information for a potential discrimination complaint.

Retaliation by an employer because an employee engaged in protected activity can take many forms. It can mean a reprimand or other discipline by an employer, including termination; a transfer to a less desirable position; a demotion; a less desirable work schedule or assignment; or a threat to report someone to law enforcement based on their immigration status. Sometimes even the threat of being penalized for speaking up — like the threat of being reassigned — can constitute retaliation.

These threats and actions have a chilling effect that keeps individuals from stepping forward to challenge harassment in the first place. The risk of damaging future career prospects, and developing a reputation within an industry as “troublemaker” is substantial. And we know that many workers, including women in low-wage jobs supporting families, can’t afford to take that chance. Those workers often don’t have the resources to weather a period of unemployment if fired, or to find and hire a lawyer.

We will never root out and prevent harassment in the first place if individuals are too afraid to speak up to report harassment, and predators are never held accountable. Everyone, including employers, needs to work together to ensure that real change – in a workplace, in an industry, in our laws, in our culture — doesn’t depend on just a few brave individuals like Moira risking it all to come forward.