It’s been 25 years since Anita Hill’s allegations of sexual harassment by Clarence Thomas brought the issue into the national spotlight. Next week, HBO will release a drama starring Kerry Washington that reprises the controversy of the Justice's Supreme Court nomination hearings in 1991. Since workplace sexual harassment has been part of the national conversation for over two decades, you might assume that the issue is basically settled, or at least that there are protections in place for all employees.
Far from it. The Equal Employment Opportunity Commission (EEOC)—ironically, the federal agency Thomas chaired in 1982 and 1983, when Hill reported to him—processed more than 6,800 new sexual harassment charges in 2015. And while that figure was down by about 14% from 2010, it still very likely represents a small fraction of the misconduct that takes place in workplaces nationwide.
It's widely believed that most incidents go unreported, and while 17% of the sexual harassment charges were filed to the EEOC by men last year, women are disproportionate victims. A recent survey by Cosmopolitan estimates that up to one in three women are sexually harassed at work.
It would be one thing if there were a robust legal structure (if not a culture) in place to respond to the issue, but what has emerged since the Thomas hearings is much more scattershot and limited. Large numbers of U.S. employees still have no legal recourse whatsoever when it comes to sexual harassment at work, particularly those working at small businesses.
Some of that is steadily changing. Most recently, California and New York passed ambitious legislation expanding statewide gender anti-discrimination protections, both of which will help combat sexual harassment. And while those states are still far ahead of the curve nationally, there are signs of momentum, including from sources few would have imagined in 1991.
The main reason so many workers remain unprotected by anti-discrimination laws starts with Title VII of the 1964 Civil Rights Act, which prevents discrimination based on race, gender, nationality, and religion. In general, that statute applies only to companies that employ at least 15 people (the threshold was lowered from 25 in 1972). It's up to states to decide whether to pass laws covering more of the workers Title VII leaves out, and in the 52 years since the Act's passage—including before the Hill-Thomas controversy—many have.
Nineteen states have lowered the threshold for coverage below the federal 15-employee minimum, and 17 others and Washington, D.C., have scrapped it altogether. Alabama and Louisiana set a higher benchmark for state statutes at 20 employees, and Maryland and North Carolina have idiosyncratic claim-filing structures. The remaining 10 either don’t have statewide anti-discrimination laws at all or stick to Title VII’s 15-employee limit. In addition, some states have either mandated or officially "encourage" sexual harassment training, but predominantly for public-sector employees only.
That still leaves a lot of people out. Estimating the number of employees who work for small businesses is difficult to do for a number of reasons (job market fluctuations, full- versus part-time status, the government’s reporting tools), but in a 2014 paper on the issue published in the Indiana Law Review, Daniel Lewallen (currently an associate at Faegre Baker Daniels) estimated the number of people working for companies of 15 employees or fewer at roughly 16.4 million in 2010.
"This means that roughly 14.7% of employees who worked in America did not work for a business that was subject to Title VII," he wrote, concluding that "nearly 66% of all establishments in the country do not need to comply with federal anti-discrimination statutes."
There's little reason to believe that's changed dramatically in the past couple of years. In 2014, Lewallen estimated that Title VII covered about 34% of all U.S. employers, up from 8% when it was first implemented, 50 years prior. Today, despite important but piecemeal progress at the state level, federal anti-discrimination protections in general and sexual harassment provisions in particular remain the exception, not the rule.
Some states have been more aggressive about closing that gap than others. California’s Fair Pay Act, which took effect in January and is widely considered the toughest in the nation, covers all workers in the state regardless of employer size. Needless to say, though, the measure is designed primarily to close the gender wage gap, not necessarily to fight sexual harassment. The same is true for New York’s Women’s Equality Act, a slate of employment laws that also went into effect in January and is aimed at pay equity and fighting human trafficking, domestic violence, and pregnancy discrimination.
"State laws have been ahead of federal law historically, in terms of that very issue: protecting individuals at smaller companies," Patrick Dolan, a partner at Siegel & Dolan Ltd., who specializes in employment law, tells Fast Company. "It doesn’t surprise me that there’s movement to lower the threshold of minimum employees" in order to do that.
It’s just that sexual harassment isn’t necessarily at the top of the agenda. Rachel Atterberry, an attorney at the Chicago firm Freeborn & Peters LLP, says, "I haven’t seen a ton of action in this area recently. Where I have seen much more action is expanded protections for LGBT rights." Dolan agrees: "On gender identity, gender expression, [and other] LGBT issues—these are what states are focusing on now."
In fact, both lawyers see the latest changes in employment law—from barring discrimination against gay and trans people to closing the gender pay gap and expanding paid family leave—as part of a larger focus on gender equality, sexual orientation, and gender identity in the workplace.
In 1991, as Hill struggled just to get her allegations taken seriously, it was seen in part as a sign of both the progress and limitations of the women's movement—more women had entered the white-collar workforce, but its culture hadn't caught up. At the time, LGBT activists were fighting hand over fist to secure HIV/AIDS research and treatment funding; workplace protections for sexual orientation and gender identity were hardly the foremost priority.
Today, feminist and LGBT activists' efforts are converging over workplace anti-discrimination issues, arguably more so than ever before. So far, and despite a handful of efforts, Title VII still includes no explicit protections for sexual orientation or gender identity or expression. That battle is being waged fiercely right now at the state level. Yet as Dolan points out, the EEOC itself has been "absolutely focused" under Obama’s presidency "on the issue of expanding protections beyond sexual orientation to gender identity and gender expression."
If these wider efforts to reshape employment law at all levels of government keep making headway, greater sexual harassment protections will likely be a part of them.
If anything, the relatively lower profile of sexual harassment as a national issue attests to the broader progress that’s been made on gender discrimination. At the state level, Atterberry has seen a gradual "expansion of what sexual harassment means, and there’s a greater "willingness of agencies or courts to adopt much more nuanced interpretations of what may be viewed as sexual harassment."
Employers have grown more sophisticated as a result. "The first instances that they hear those complaints," Atterberry says, "they have those policies in place, as opposed to this gray area . . . It used to be, ‘Oh, that’s just how Bob is.’" The law hasn’t compelled smaller organizations in the same way, though. Especially in family businesses and startups, Atterberry says, it’s much more common that "the house isn’t in order, so to speak." There may be no reporting structure in place, no employee handbook, no HR department at all.
That leaves employees vulnerable. In those situations, Dolan explains that "it isn’t just an issue of what may happen to your job, but [there are also] evidentiary issues: It’s ‘he said, she said.’" Claims aren’t just less likely to be pursued, they’re also less likely to succeed.
"Listen, there’s a reason that Title VII has a 15-employee threshold," Dolan adds, "Think of all the lobbying groups that protect small businesses." A $50,000 to $100,000 claim could bankrupt a small company, he points out, which may not be able to afford the employment practice liability insurance larger corporations buy.
So while it’s a moral balancing act (between supporting harassment victims and protecting small-business owners), it’s also a political one: States that traditionally lean right and pro-business generally have fewer anti-discrimination statutes; those that tilt leftward and are strong on workers’ rights do. Tipping that balance means making a political case for doing so, not just an ethical one. That's a lesson that Anita Hill's experience at the center of a contentious Supreme Court nomination battle taught us a quarter-century ago.