Sexual Harassment Cases Go Uncounted as Complaint Process Goes Private

By Jeff Green

Even as women have begun speaking out about sexual harassment at work, the number of official complaints to state and federal regulators hit a two-decade low in 2017.

The federal Equal Employment Opportunity Commission and its state-level counterparts received just over 9,600 complaints in 2017, according to data obtained by Bloomberg, down from more than 16,000 in 1997—a 41 percent drop.

EEOC sexual harassment complaints
Per 100,000 U.S. women employees

But few experts think the decline means people—women, mostly—are facing 41 percent less sexual harassment, only that the complaint and resolution process is getting more private. Ninety-five percent of companies now have an in-house complaint process, the Society for Human Resource Management said in a January report. Eighty-two percent have an investigation protocol in place.

“It creates a false illusion that we’ve sort of solved the problem because we have the hotlines, we have systems in place, we’ve done the training,” said Orly Lobel, a labor and employment law professor at the University of San Diego. “There’s a public price we’re paying for not knowing what’s going on in our workplaces.”

Every U.S. state saw the rate of sexual harassment per 100,000 women in the workforce fall over the last 20 years, but the drops weren’t uniform. Complaints in Maine fell by 96 percent, the biggest single-state drop. Michigan had the smallest, at about 19 percent, according to the EEOC data. It’s hard to compare, though, because state laws vary significantly, as do their enforcement. For example, Alabama has no state laws regulating harassment. California has a strict law.

EEOC sexual harassment complaints
Per 100,000 U.S. women employees

0%

-25%

-50%

-75%

-100%

AK

ME

31.3

28.3

1.3

10.5

VT

NH

21.3

17

13.1

3.1

WA

ID

MT

ND

MN

WI

MI

NY

MA

RI

27.9

28.1

25.7

18.5

10.7

20

17.8

17.6

5.4

8.6

10.4

12.5

10.8

9.7

10.5

10.6

7.2

6.7

3.8

1.9

OR

UT

WY

SD

IA

IL

OH

PA

NJ

DE

CT

34.6

29.1

28.9

30

26.1

25.3

24.1

14.9

18

11.9

12.2

12.4

8.4

8.8

9.5

6.2

7.6

4.8

4.8

23.6

4

9.5

60

CA

NV

CO

NE

MO

IN

WV

VA

DC

MD

47.9

41.2

35

35.3

24

31.5

22.8

22

17.8

15

11.4

11.6

11.3

10.2

8.6

7.4

3.3

2.3

17.2

AZ

NM

KS

AR

KY

TN

SC

NC

49

35.2

30.3

27.3

30.7

19

15.6

16.5

15.9

39.7

15.3

8.6

5.8

25.6

13.5

14.3

OK

LA

MS

AL

GA

43.5

36.8

32.5

30.7

23.1

22

11.1

15.3

12.5

19.7

HI

TX

FL

38.9

33.6

21.8

10.8

11.4

9.1

0%

-25%

-50%

-75%

-100%

ME

AK

31.3

28.3

10.5

1.3

VT

NH

21.3

17

13.1

3.1

WA

ID

MT

ND

MN

WI

MI

NY

MA

RI

27.9

28.1

25.7

10.7

20

18.5

17.8

17.6

10.5

12.5

8.6

10.4

5.4

9.7

10.8

7.2

10.6

6.7

3.8

1.9

OR

UT

WY

SD

IA

IL

OH

PA

NJ

DE

CT

34.6

30

28.9

29.1

26.1

9.5

25.3

24.1

12.2

18

14.9

12.4

11.9

9.5

6.2

8.4

8.8

7.6

4.8

4.8

4

23.6

60

CA

NV

CO

NE

MO

IN

WV

VA

DC

MD

47.9

41.2

35.3

35

24

31.5

22.8

22

17.8

11.4

11.3

15

11.6

8.6

10.2

7.4

2.3

3.3

17.2

49

AZ

NM

KS

AR

KY

TN

SC

NC

39.7

35.2

27.3

30.7

30.3

13.5

19

15.9

15.6

16.5

14.3

15.3

8.6

5.8

25.6

OK

LA

MS

AL

GA

43.5

36.8

32.5

30.7

23.1

22

11.1

15.3

12.5

19.7

HI

TX

FL

38.9

33.6

21.8

9.1

11.4

10.8

0%

-50%

-100%

AK

ME

31

28

11

1

VT

NH

21

17

13

3

WA

ID

MT

ND

MN

WI

MI

NY

MA

RI

28

28

26

11

20

19

18

18

11

13

9

10

5

10

11

7

11

7

4

2

OR

UT

WY

SD

IA

IL

OH

PA

NJ

DE

CT

35

30

29

29

26

10

25

24

12

18

15

12

12

10

6

8

9

8

5

5

4

24

48

CA

NV

CO

NE

MO

IN

WV

VA

DC

MD

41

35

35

32

23

22

18

11

11

15

12

10

9

7

60

2

3

24

17

49

AZ

NM

KS

AR

KY

TN

SC

NC

40

35

27

31

30

14

19

16

16

17

14

15

9

6

26

OK

LA

MS

AL

GA

44

37

33

31

23

22

11

15

13

20

HI

TX

FL

39

34

22

11

11

9

0%

-50%

-100%

ME

AK

30

0

VT

NH

30

0

WA

ID

MT

ND

MN

WI

MI

NY

MA

RI

30

0

OR

UT

WY

SD

IA

IL

OH

PA

NJ

DE

CT

30

0

CA

NV

CO

NE

MO

IN

WV

VA

DC

MD

30

0

AZ

NM

KS

AR

KY

TN

SC

NC

30

0

OK

LA

MS

AL

GA

30

0

HI

TX

FL

30

0

At the company level, HR departments don’t always know the extent of their own problems. The same SHRM report found a wide disconnect between what HR sees and what employees are saying. Three out of four non-manager employees who experienced harassment said they did not report it. At the same time, 57 percent of human resource professionals said that unreported sexual harassment occurs “to a small extent.”

Companies can’t bar employees from reporting complaints to the EEOC, which investigates and makes a determination about whether there’s enough to proceed with a court case. But many employers have required employees to sign away their right to file a civil suit. According to research by the Economic Policy Institute, more than half of U.S. companies now require employees to settle disputes of all kinds, including sexual harassment, through arbitration, where it remains behind closed doors.

It may not stay there for long. There are several efforts underway to encourage companies to disclose more. The New York State Senate has a bill in committee that would require companies to report complaint statistics annually in order to be eligible for a development tax break. The California Public Employees Retirement System, the largest U.S. pension fund, is also weighing a policy to urge its portfolio companies to add more disclosure of sexual-harassment settlements.

In a rare move, the attorneys general of every U.S. state, territory and the District of Columbia in February sent a joint letter urging Congressional leaders to take action to prevent victims of sexual harassment from being forced into arbitration. At least one House bill has been introduced to ban such practices, but it hasn’t been referred to committee. Microsoft Corp. and the state attorneys general are supporting a similar bill in the U.S. Senate.

But some advocates say there's a benefit to a confidential process. Attorney Gloria Allred, who has quietly handled hundreds of settlements on behalf of harassment victims, said many of her clients appreciate the confidentiality.

“They don’t want it to follow them to another job,” she said. “No solution is perfect, but I think the model that is evolving out of all of this is proving to be beneficial, thus far.”

Companies are working to increase confidence in the reliability of investigations, improve workplace training and be more responsive to complaints. Keith Rohman, president of the Association of Workplace Investigators says the organization’s membership has doubled to more than 850 in the last five years as demand grows for outside review. About two thirds of companies are assessing their culture and 44 percent are developing new accountability measures, according to SHRM.

At the same time, complaints about retaliation in the workplace have almost doubled in the last two decades, a stat that experts say acts as a proxy, because about three quarters of all sexual harassment complaints include allegations of retaliation, said Mindy Weinstein, acting director of the Washington field office of the EEOC. The agency doesn’t have a separate category for that.

About 12 percent of workers said they witnessed harassment in the workplace but feared retaliation if they reported it, according to a December survey of 1,128 workers for online legal company LegalZoom.

“We’re hopeful that the dialogue that’s going on will encourage employers to take seriously their obligation to have a good policy and to act appropriately when someone raises a concern,” Weinstein said in an interview. “But the growing expertise at companies in handling internal complaints is irrelevant if the process doesn’t prevent retaliation.”