Carly McCann, Donald Tomaskovic-Devey, & M.V. Lee Badgett
Sexual harassment is a pressing national issue in both the public sphere and many workplaces. Recent high-profile allegations in the media, government, and prominent firms as well as the accompanying social movements (such as #TimesUp and #MeToo) have raised the visibility of sexual harassment, strongly suggesting that workplace sexual harassment has not been effectively addressed—or perhaps even taken seriously—by many employers.
In this report we examine employer responses and the outcomes of 46,210 Title VII sexual harassment discrimination charges filed between 2012 and 2016 with the U.S Equal Employment Opportunity Commission (EEOC) and state Fair Employment Practices Agencies (FEPAs). We also examine the EEOC’s processing of the 33,304 Title VII sexual harassment charges filed solely with the EEOC.
After a summary of our main findings, we present a short introduction to the definition of sexual harassment under the law. This is followed by our estimates on the frequency of sexual harassment in U.S. workplaces and the progressively narrow process through which they become complaints and receive redress through the legal system. We then describe the process through which a sexual harassment charge is filed, including a description of the content of these charges.
We go on to describe the gender and race of sexual harassment charging parties as well as the industry breakdown of charges. This is followed by analyses of employer responses to sexual harassment allegations as well as EEOC processing of these complaints. Our final analysis examines the distribution of benefits to the charging party from sexual harassment complaints. We conclude with a recommendation that workplace sexual harassment needs to be managed by employers as a human resource problem, rather than as a legal threat.
- About 5 million employees are sexually harassed at work every year
- The overwhelming majority (99.8%) of people who experience sexual harassment at work never file formal charges.
- Of those who file formal charges, very few—we estimate less than 1,500 per year—go to court.
- Most employers react punitively toward people who file formal sexual harassment charges.
- 68% of sexual harassment charges include an allegation of employer retaliation, this rate is highest for Black women.
- 64% of sexual harassment charges are associated with job loss, and this rate is highest for White women and White men.
- Industries vary widely in their sexual harassment discrimination charge rates.
- In all industries women are more likely than men to file charges, but this sex difference grows in male dominated industries.
- While the EEOC initially tends to judge sexual harassment charges as more likely than other discrimination complaints to sustain a finding of legal cause, most individuals benefit little from EEOC case processing.
- 27% of employees who file a sexual harassment charge with the EEOC and continue to pursue redress, receive any benefit
- 23% receive some monetary compensation
- the average award is $24,700, the median award is $10,000
- less than 1% of awards are over $100,000
- Only 12% of charges lead to a managerial agreement to change workplace practices
- 27% of employees who file a sexual harassment charge with the EEOC and continue to pursue redress, receive any benefit
- Our conclusion from these results is that sexual harassment, and perhaps discrimination of all types, should be addressed proactively and affirmatively as managerial responsibilities, rather than leaving it to the targets of discrimination to pursue legal remedies as individuals.
What is Workplace Sexual Harassment Under The Law?
Sexual harassment at work is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination on the basis of race, color, religion, national origin, and sex. The legal status of sexual harassment discrimination was unclear until 1986 when the U.S. Supreme Court endorsed the view that sexual harassment was sex discrimination under Title VII in Meritor Savings Bank v. Vinson.
The legal standard for sexual harassment is generally higher than unwanted sexual behaviors. According to the EEOC, the government agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee, the law does not prohibit teasing, offhand comments, or “isolated incidents that are not very serious”.1
Unwanted sexual behavior becomes illegal when it meets at least one of two legal standards. Under the quid pro quo standard there must be an implicit or explicit threat of some job related loss if the employee does not submit to a sexual encounter. Under the hostile workplace environment standard, the sexual encounter must be repeated or severe enough to create an intimidating or hostile work environment or result in an adverse employment decision. The harasser can be the target’s supervisor, co-worker, or even a client or customer. Employers, however, are responsible for sexual harassment discrimination under the law.
In our analysis of all discrimination charges filed with the EEOC, including those submitted to the EEOC from state Fair Employment Practice Agencies, between 2012 and 2016 we find that 12% of all Title VII discrimination charges contained a sexual harassment allegation. Sexual harassment allegations are more common than all other discrimination issues, with the exception of firing, workplace terms and conditions, discipline, and non-sexual harassment.2
How Prevalent is Sexual Harassment?
Estimating a workplace sexual harassment rate is difficult. The experience of harassment varies as a function of age, the invasiveness of the encounter, and the legal and bodily rights consciousness of the target. Self-reports of perceived workplace sexual harassment during the last year from the U.S. General Social Survey (GSS) suggest that each year approximately 5% of employed women and 2% of employed men experienced unwanted sexual behavior that they perceived as sexual harassment at work.3 The U.S. Equal Employment Opportunity Commission estimates that cumulatively across their careers up to 85% of women will be sexually harassed one or more times. Importantly, the EEOC also estimates that three out of four individuals who experience sexual harassment in the workplace never tell a supervisor, manager, or union representative about the incident.4 The experience of sexual harassment at work is widespread and compounds across the career for both men and women.
While many people experience sexual harassment at some time, relatively few report those experiences to the EEOC.5 Using the General Social Survey percentages multiplied by the U.S. workforce, we estimate that there are 5,117,835 people who believe they have experienced sexual harassment every year. In the charge records, we calculate that 9,242 charges of sexual harassment were filed with the EEOC or local FEPA on average each year from 2012-2016.
Sexual harassment complaints represent only 0.18% of those who we estimate experienced sexual harassment at work.6 Since the legal standards are high, it is not surprising that only a very few file a charge. Not filing a charge may also make economic and social sense. As we report below, there are often severe negative consequences to filing a charge, and most people who do file a charge receive no benefits.
(estimates are yearly averages for 2012-2016)
The process of filing a sexual harassment charge is illustrated in Figure 1 as a dispute pyramid.7 The stages in the pyramid reflect what Felstiner et al. (1980) have called the “naming, blaming, and claiming” process in which injurious experiences are transformed into formal grievances.8 The base of the pyramid represents the estimated 5.1 million workers who experience a workplace incident they perceived as sexual harassment. Of those who perceive their experience as sexual harassment (“naming”), somewhere between 25% and 40% of them, or 1.2-2.0 million employees, will report internally to a supervisor, union or human resource department (“blaming”).9 As noted above, an even smaller subset of about 9,200 people are in the EEOC and FEPA charge database, having moved forward with filing an official charge (“claiming”). This figure grows smaller either because the issue is resolved internally or the complainant chooses not to move forward with the case for other reasons such as fear, lack of resources or understanding of the law, or time to file a charge. In other words, 99.8% of people who experience sexual harassment at work never file a sexual harassment charge. Even among the subset of people who seek redress in the workplace upward of 99% never file a formal sexual harassment charge outside the workplace.
Most (8,147 on average per year) sexual harassment charges are judged by the EEOC to potentially be legally actionable when they are first filed, suggesting that the vast majority of sexual harassment discrimination charges are on their face credible and meet a set of procedural criteria including recency of the event. Frivolous charges are likely to be vanishingly rare. Despite this, only 1,797 charging parties per year receive any benefit through the EEOC’s processes of mediation and conciliation brokered by the EEOC between the employee and their employer. After formally filing a charge, a small proportion of charges divert from the EEOC and into the courts. Although we do not have a precise estimate, we believe that the numbers are similarly small for the civil court system.
While the conversion of sexual harassment experiences into workplace complaints or legal claims is complex, our estimates are clear that the majority of people who experience sexual harassment do not register complaints with their employers, and very few file formal charges. Past research suggests that the individuals who file charges first lodged complaints to their employers but did not get an adequate response or were punished for doing so.10
That same research suggests that most people who file discrimination complaints are not primarily seeking monetary damages, but often want their job back, the perpetrator punished, or to improve working conditions in their workplace for themselves and coworkers. Furthermore, past research has found that targets of sexual harassment typically attempt to remedy the situation on their own by ignoring it or confronting the harasser before reporting the harassment to a supervisor or to human resources. Overall, prior research suggests that targets of sexual harassment are not “trouble makers”, but simply trying to do their job.11 Research has also found that people choose not to file sexual harassment complaints at work because they do not trust the process, do not expect it to be confidential, and/or expect retaliation.12
Formal charges of sexual harassment discrimination roughly represent the population of complaints where the charging party felt aggrieved, understood that they had rights under the law, felt safe enough to pursue a formal charge, believed that the severity of the encounters might rise to the high legal standards required to sustain a legal finding, and who had the resources to file a complaint.13 The problem of sexual harassment is obviously much larger than the incidence of legal charges. In fact, it is striking how rare sexual harassment charges are relative to the experience of unwanted workplace sexual encounters.
Filing A Sexual Harassment Charge
Figure 2: Example of Issues and Bases in a Discrimination Charge
Only 11% of sexual harassment charges were filed exclusively as sexual harassment complaints (i.e. contained sexual harassment as the only issue). The most frequent co-occurring issues were discriminatory job loss (64%), general harassment (28%), and terms and conditions of work (26%).17 Compared to all other Title VII charges that do not contain a sexual harassment allegation, sexual harassment charges are more likely to allege constructive discharge and intimidation (see Table 1). Constructive discharge refers to employer retaliation or sexual harassment severe enough to lead a reasonable employee to quit their job. Sexual harassment is infrequently associated with other discrimination complaints, such as discrimination in hiring, promotion, and pay discrimination.
After the charge is filed, the EEOC has several routes to resolving charges, any of which can lead to monetary or other benefits for the charging party. The EEOC offers charging parties and their employers a mediation process with a third party mediator to resolve a complaint before an investigation occurs.18 Charges are also sometimes settled during an investigation. After an investigation in which the EEOC finds reasonable cause to believe discrimination has occurred, the EEOC works to resolve a complaint through a conciliation process. If conciliation fails, either the charging party or the EEOC may file a lawsuit in court. Most charges are settled in the EEOC’s mediation or conciliation processes or are dropped. A charging party may drop out of the EEOC process and request a right to sue letter or the charge may be closed for administrative reasons such as failure to locate the charging party, lack of jurisdiction, or the charging party requests withdrawal of the charge.19. In our data, 20% of sexual harassment charges were closed for these administrative reasons.
Table 1: Co-occurring Discrimination Issues
The EEOC reports that in fiscal year 2010, conciliation was successful for 27% of all discrimination charges, and the rate of successful conciliation increased to 38% of charges in fiscal year 2014.20. Only a small number go to court, and only very rarely with the EEOC suing the employer. We do not know what this rate is specifically for sexual harassment charges, but in 2016 there were 91,503 discrimination charges filed with the EEOC and the EEOC took 114, about 0.1% of charges received, to court.
Charging parties can get a “right to sue” letter from the EEOC and bring a lawsuit to court via the private bar. One study estimates that 17% of charges of racial discrimination result in a lawsuit being filed by the charging party, but another estimates that less than 1% result in a lawsuit.22 If sexual harassment complaints are similar, these wildly divergent estimates suggest that between 90 and 1,571 sexual harassment lawsuits were actually filed in courts in an average year. Since we estimate that there are more than 5 million incidences per year, the clear conclusion is that the vast majority of workplace sexual harassment incidences never lead to an EEOC discrimination complaint and very few of these ever make it to court. This low rate of filing also suggests that the key responders to sexual harassment in workplaces are those who are harassed and their managers
Who Files Sexual Harassment Charges?
Table 2 describes the demographics of charging parties for charges containing a sexual harassment allegation, all other non-sexual harassment charges alleging Title VII discrimination, and for the subset of sex-based discrimination complaints that do not include sexual harassment as an issue. Sex-based charges include those Title VII charges made on the basis of one’s sex, male or female, as well as charges based on one’s sexual orientation or gender identity.22
Women filed 57% of all other (non sexual harassment) Title VII complaints, 75% of sex-based Title VII complaints, and 81% of all sexual harassment allegations. Though women are much more likely to experience sexual harassment at work and file a formal charge, men experience this issue as well: 19% of sexual harassment charges were filed by men.
Based on the General Social Survey estimates reported above, among those who experience sexual harassment at work, women are more likely than men to eventually file a formal charge. Women are 72% (with a confidence interval of plus or minus 1%) of those reporting experiencing sexual harassment at work on a survey, but 81% of those filing charges. We do not know if this represents differences in the seriousness of the harassment, more effective employer redress of sexual harassment complaints from men, or higher male reluctance to report.
Relative to other Title VII discrimination charges, sexual harassment charges are much more common among white women, roughly equally common among white men (who file absolutely fewer discrimination complaints than other status groups), less common among black women, and much less frequent among black men.
Relative to their representation in the labor market overall, women report a disproportionate amount of workplace sexual harassment. Although they comprise 47% of the labor force, women file 81% of sexual harassment charges. Black women, in particular, report a disproportionately large percentage of workplace sexual harassment charges; they account for 7% of the labor force but file 27% of sexual harassment charges.
About half of all case processing reports are missing information on the industry of the workplace. Thus it is difficult to make precise estimates of industry variation in charge rates. Past research suggests that sexual harassment is more common in workplaces with a hyper-masculine culture and where management tolerates abusive behavior in general.23 Given that the vast majority of sexual harassment experiences go unreported, we have no way of knowing if rates of reporting or the quality of managerial responses to internal complaints vary by industry. Given these limitations we have calculated rates by industry of sexual harassment reports to the EEOC and the state FEPAs. We calculate the rates by dividing the number of sexual harassment cases by the gender specific industry labor force.24 Figure 3 displays these results.
Figure 3 is sorted by the female sexual harassment charge rate. Sexual harassment charges filed by women are least common in government, health care and social assistance and finance. They are most common in mining, warehousing, and transportation. In general female sexual harassment charges are higher in male dominated industries (correlation = .77). Male sexual harassment charge rates are lower than those filed by women in all industries. They are highest in educational services, followed by warehousing, accommodations and food service, and health care. Male charge rates are lowest in public administration, followed by wholesale trade, construction, and professional services. The rate of male sexual harassment charges is also associated with the sex composition of employment, with a weak tendency to be higher in industries with more women employees (correlation coefficient = .42).
What Are Employer Responses to Sexual Harassment Charges?
Past research is clear that harassment, firing and retaliation are frequent employer responses to complaints of discrimination.25 Our analysis shows that sexual harassment is no exception to this pattern. Sixty-eight percent of sexual harassment allegations include a charge of employer retaliation in the face of a discrimination complaint. Almost two-thirds of those filing sexual harassment charges (64%) report losing their jobs as a result of their complaint.26 High instances of job loss and retaliation are present across race and sex categories (Table 3).
Most employer responses tend to be harsh both via retaliation and firing employees who complain. The very low proportion of employees who file sexual harassment complaints is very likely to be related to employers’ typically punitive responses. We do not know whether the retaliation occurred after the targeted employee reported the sexual harassment internally or after the charge was filed with the EEOC or FEPA. However, what is clear is that complaining about sexual harassment is quite dangerous, inciting employer retaliation and firing in most instances.
White men and White women are more like to lose their jobs than are other groups. Black women, in contrast, are less likely to lose their job, although most do. Clearly filing a sexual harassment discrimination charge is no protection against job loss, and probably increased the likelihood that the charging party will lose their job.
Employer retaliation is widespread, since two-thirds report it. It is highest for Black women, but almost as high for all groups. Retaliation for filing a charge of discrimination is explicitly prohibited by federal law, but is apparently normative in many workplaces. This pattern of extreme retribution fits what we have learned from past research, which finds that employers, following the advice of internal and external legal counsel, react to internal discrimination complaints with aggressive attacks on those who complain. This tactic is designed to isolate the charging party and to send a message to other workers that the cost of pursuing legal remedies to discrimination will be prohibitively high.27
Does the EEOC Treat Sexual Harassment Complaints Seriously?
This section focuses on the processing of sexual harassment charges for the 33,304 Title VII sexual harassment charges filed directly with the EEOC.28 When a charge is filed with the EEOC it is given an initial processing code indicating the likelihood that the charge has sufficient evidence to support a legal finding of employment discrimination. A code of “A” by the EEOC intake staff indicates that the complaint is likely to be able to demonstrate legal cause that discrimination occurred, and those charges are more likely to be investigated by the EEOC.29.
Table 4: Discrimination Processing Codes for Sex-Based Title VII Charges
The “B” code suggests legal cause may be present but additional information is needed, and they are more likely to be offered EEOC brokered mediation with the employer. The code “C” indicates that the intake staff judged that legal cause was unlikely, often because the filing deadline was missed or because the charge is not related to laws enforced by the EEOC.
In Table 4 we compare initial processing categories for Title VII sex-based charges by issue type for charges filed with the EEOC. Most discrimination charges of all types are initially assessed as either A or B. Overall, about one quarter (23%) are coded “A” and more than half (61%) of all sex-based Title VII charges are processed as type “B”. Category C charges are the smallest group of initial assessments (16%). Thus, most charges that make it to the EEOC are judged by intake staff to be potentially serious and to plausibly contain legal merit. This initial assessment of the potential merit of charges should not be surprising since very few discrimination experiences ever make it to the stage of filing formal discrimination charges.
Table 4 also compares all issues alleged in sex-based Title VII charges. Sexual harassment discrimination charges are the most likely of all sex-based Title VII charges to be processed as “A” (33%), followed closely by intimidation (32%). Both tend to have clear perpetrators and targets, making legal findings easier to establish.
EEOC initial processing tends to evaluate sexual harassment allegations as more likely to eventually demonstrate legal cause than other charges of Title VII or sex-based discrimination. While the EEOC initial charge processing assesses that the majority of all types of discrimination charges as potentially meritorious, combining A and B codes sexual harassment charges appear to present at least as much initial evidence of merit as other charges. There is no evidence here that the EEOC takes sexual harassment charges less seriously than other discrimination charges.
Table 5: Sexual Harassment Charges Processing Codes by Demographic Groups
A charging party’s race and gender may also influence the likelihood that a charge is categorized as legally actionable. Among sexual harassment charges filed with the EEOC, those filed by white women are more likely to be processed as “A” when compared to both black women and all men. Thirty-five percent of sexual harassment charges filed by white women were processed as “A” compared to 31% of those filed by black women. Cases filed by men of all races are seen as less legally actionable in initial processing.
Do charges result in benefits for charging parties?
This section focuses on the outcomes of sexual harassment charges filed with either the EEOC or state/local FEPA. These outcomes reflect settlements in which the charging party did not withdraw their charge and thus proceeded through mediation, negotiation/settlement, or conciliation.
Table 6: Percent of Discrimination Charges that received Some Benefit by Issue Type
Table 6 shows the percent of charges that received any (monetary or nonmonetary) benefit by issue type. Among non-sexual harassment charges, between 14 and 21 percent of all Title VII charges and 17 to 24 percent of sex-based Title VII charges received a benefit.30 Twenty-seven percent of sexual harassment charges received some benefit, again the highest percent of all issues.
Most people who file discrimination charges, including discrimination charges that the EEOC judges initially to be legally actionable, do not receive any benefit. At the same time sexual harassment charges stand out as more likely than other discrimination issues to secure some benefit. About a quarter of people who file sexual harassment charges, and do not withdraw their charge, receive some benefit under this process.
A complainant’s race and gender are associated with the likelihood of a sexual harassment discrimination charge receiving a benefit. Sexual harassment charges filed by women, particularly White women, are more likely to receive a benefit compared to women of other races and to men. 29% of sexual harassment charges filed by White women received a benefit, compared to 23% of those filed by Black women, 21% by White men, and 18% by Black men (see Table 7).
Twenty-three percent of sexual harassment charges produce some monetary benefit for the charging party, and 12% result in a workplace-level change of some sort. Nearly 9 out of 10 (88%) sexual harassment charges do not lead to any required change in employer behavior or managerial practices. Eight percent of sexual harassment charges lead to both a monetary benefit for the charging party and some negotiated change in workplace managerial practices.
High profile media cases often focus on large monetary settlements for the targets of sexual harassment. For example, FOX News paid former broadcaster Gretchen Carlson $20 million to settle her sexual harassment lawsuit against former FOX News CEO Roger Ailes. But outcomes for most sexual harassment charges are much smaller. Overall, charging parties who received monetary compensation for sexual harassment charges were awarded $24,700 on average. Large monetary benefits are very rare—only 1% of charges resulted in monetary compensation over $100,000 (Table 9).
Twenty-eight percent of those who filed a sexual harassment charge were represented by legal counsel. Those represented by legal counsel received higher compensation, $38,732 on average. This is about 50% higher than those not represented by legal counsel. However, lawyers typically get a third of any settlement, reducing the added monetary value of representation. There is both a small monetary benefit to securing legal counsel and a higher probability (35% vs 20%) of receiving a monetary settlement.
Table 9: Monetary Compensation for Sexual Harassment Charges
Note: Average and median monetary amounts reported for closed charges which did not withdraw their charge for administrative reasons and who received any non-zero monetary amount.
Those represented by counsel are also more likely to also allege job loss and retaliation (Table 10). This suggests that lawyers view sexual harassment cases that allege harsh employer response as more legally actionable and potentially lucrative.
Sexual harassment remains a persistent and serious threat to women and men in American workplaces. While the vast majority of those who experience sexual harassment in the workplace never report this harassment internally nor file a formal discrimination charge, those who do are typically confronted by harsh outcomes.
Our analyses of five years of sexual harassment charges filed with the EEOC and local FEPAs reveals that the majority of those who report sexual harassment experience retaliation (68%) and job loss (64%) while receiving little ($24,700 on average), or more often, no compensation. Although the EEOC initially processes most sexual harassment charges as potentially legally actionable (88%), only a minority of cases (27%) result in any benefit. While past research has found the majority of those who file a charge do so in hopes to initiate change in their workplace, we find that only 12% of charges result in any workplace policy change. Thus, those who pursued legal remedies may be left feeling that the benefits they hope to receive are not the outcomes they experience.31
The current case processing practices at the EEOC and state FEPAs do not appear to be serving all charging parties well. Most cases appear legally plausible, but most receive no benefits. The EEOC has long worked under a backlog of cases. The EEOC’s funding levels are simply insufficient to investigate and pursue all the discrimination cases they are presented with. At the same time the formal discrimination charge process probably generates substantial employment and revenue for defendant firm’s legal teams.
While the contemporary legal process of workplace sexual harassment appears to lead to suboptimal results, the current social movements around sexual harassment certainly can play a role in empowering targets, changing managerial responses, and even preventing future workplace sexual harassment. Current activism has helped call attention to the pervasiveness of
sexual harassment and initiated conversation regarding sexual harassment in many workplaces. If those conversations lead to changes in managerial practices promoting respectful treatment in workplaces and the empowerment of employees who experience sexual harassment, then they may help prevent sexual harassment and create safer, less abusive, workplaces.
Given current practices the legal route is unlikely to produce this outcome. Sexual harassment, and perhaps discrimination of all types, might be better addressed by managers treating them as managerial responsibilities, rather than effectively outsourcing them as legal problems.32 The EEOC has made precisely this recommendation in its recent report on harassment and has introduced training in managerial practices and the creation of respectful workplaces to educate employers as to how to reduce sexual and other forms of harassment at work.33 It is unclear how widespread or effective that training is, but it certainly seems a step in the right direction.