I had thought sexual harassment law was relatively straightforward. For decades, unwanted touching or comments in the workplace has been illegal, and companies have been required to protect victims and punish perpetrators.
But just last week, three members of Donald Trump’s family, including the candidate himself, stumbled badly when asked simple questions about job harassment. As Donald Trump would say: a disaster.
First, USA TODAY’s Kirsten Powers asked the GOP presidential nominee in an interview, “What if someone had treated Ivanka in the way Ailes allegedly behaved?” (Former FoxNews chief Roger Ailes is reportedly accused of sexually harassing twenty-five women, spanning decades. Mr. Trump has chosen to publicly support his friend Mr. Ailes, saying the claims are “unfounded.”)
Mr. Trump’s response? “I would like to think she would find another career or find another company if that was the case.”
The harasser is to blame, not the harassed
In the 1960s and ‘70s, feminists fought for and won the right of workers to oppose sexual harassment and keep their jobs. Gone are the days of victim blaming. Women and men subjected to workplace misconduct should assert their rights under Title VII of the 1964 Civil Rights Act and parallel state laws by preserving evidence, and complaining to Human Resources, or the head of the company, in writing.
The law protects complainants from retaliation. What should a sexual harassment victim do if the company fails to protect her? Contact the Equal Employment Opportunity Commission and/or a good lawyer. The sooner the better. It is the harasser who should find another job—with a major blemish on their record—not the person being harassed. The victim stays.
In short, employees do not have to choose between their dignity and their jobs. We get to have both. (Thanks, women’s rights activists a generation ago!)
Harassment and the wage gap
Donald Trump’s boneheaded advice that women should “find another career or find another company” ignores this entire body of law, as well as the reality that most of us worked hard to secure the careers in the companies where we currently work, and that leaving creates steep financial penalties. In fact, after representing many sexual harassment plaintiffs for decades (and currently), I believe that women leaving jobs rather than confronting harassers—unfortunately, many do—is one of the prime drivers of the gender wage gap. Full time female workers in 2015 made only 79 cents for every dollar earned by men, who rarely have to leave a job to escape harassment.
Dealing with a harassment issue in your workplace? Get advice from a local employment attorney
Unlike Ivanka Trump, most of us don’t have billionaire daddies to smooth a transition. Leaving a job means a period of unemployment, and probably accepting a lower paying position just to get back to work. A career change is even worse, putting a worker at the bottom of the job ladder, having to start all over again.
Nobody chooses to be harassed
In an attempt to do damage control, Donald Trump’s son Eric then told CBS that Ivanka simply would not “allow herself” to be sexually harassed by a boss. “Ivanka is a strong, powerful woman, she wouldn’t allow herself to be [subjected] to it,” he said. “I don’t think she would allow herself to be subjected to that.”
Wrong again. Eric Trump seems to think that women have a choice to either allow ourselves to be subjected to harassment or not. All we have to do is be a strong woman, and then it won’t happen! Hey, why didn’t we think of that?
Sarcasm aside, I have represented women in sexual harassment cases who are teenagers, grandmothers and every age in between. My clients have been powerful high earning business executives as well as waitresses and secretaries who were also strong women. I myself—a sexual harassment lawyer!—have been sexually harassed by a television executive. There’s no “allowing” behavior that comes at us from out of the blue. Harassers have the advantage of the element of surprise.
Different Trumps, different definitions
In an attempt to do damage control on her brother’s damage control, Ivanka Trump then did an interview on FoxNews (ironically, the network riven by the sexual harassment scandal that started this ball rolling), and said, “I think harassment in general, regardless, sexual or otherwise, is totally inexcusable and if it transpires it needs to be reported and it needs to be dealt with on a company level.”
Since a Trump never misses an opportunity to promote the brand, she added, “We have a very strong HR team at the Trump Organization, who is equipped to deal with these issues if they arise … and you hope you have a culture in which they don’t arise. But when they do, it needs to be dealt with swiftly.”
Dealt with how, Ms. Trump? Interviewer Greta Van Susteren allowed her to get away with this generalized response, which ran counter to what her father and brother had just said. The law requires a company receiving a good faith complaint of sexual harassment to do a prompt, thorough, impartial investigation, and if sexual harassment is found, punish the perpetrator and protect the victim. Merely saying that companies need to “deal with these issues” barely scratches the surface of what is legally required. As someone who claims to be an advocate for working women, Ivanka Trump should have elaborated.
Ms. Trump also blithely claimed a few months ago that her father was “not a groper,” even though my client Jill Harth has alleged otherwise since her 1997 sexual harassment case against Donald Trump. (As have several others.) One of Ms. Harth’s allegations is that Donald Trump forcibly groped her in Ivanka’s bedroom when Ivanka, a child at the time, was not present. Ms. Trump could have said nothing. Instead, she chose to take the side of the accused harasser.
Managers typically spend a few hours a year learning the rules regarding the still widespread practice of sexual harassment. I’d like to send the entire Trump family to a remedial course.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
Image courtesy of cnn.com