Barriers to Effective Enforcement of Sexual Harassment Law
last updated 13 July 2007

There are significant barriers to the effective enforcement of sexual harassment law. The most significant relate to or reinforce the reluctance of victims to report instances of sexual harassment or to pursue legal claims against the harassers or their employers. In particular, there are procedural and evidentiary obstacles for individuals seeking to obtain redress (and damages) in the courts for sexual harassment in the workplace, including burden of proof hurdles and requirements as to proof of injury. Some jurisdictions have taken action to remove these obstacles to encourage victims of sexual harassment to report instances of illegal conduct and to make it more likely that victims of sexual harassment will be successful in their litigation.

Sexual Harassment is Often Not Reported

There are several factors that contribute to the low incidence of reporting sexual harassment. The National Council for Research on Women reported in 1991 that over 50% of female victims surveyed in the United States reported that they did not believe anything would come of making a complaint and 50% were afraid they would be blamed for the sexual harassment. Other reasons cited by women for not reporting an incident of sexual harassment was concern for the harasser, fear of losing one's job and fear of being ostracized by coworkers. These concerns and shameful feelings about the harassment were cited as factors contributing to the underreporting of sexual harassment in Poland in connection with a 2002 survey.

Adapted from: Sexual Harassment: Research and Resources, A report in progress; National Council for Research on Women (Nov. 1991); European Foundation for the Improvement of Living and Working Conditions, Preventing Violence and Harassment in the Workplace (2003) (PDF, 5 pages); The Advocates for Human Rights & Georgetown Law Center, Employment Discrimination and Sexual Harassment in Poland 22-32 (July 2002) (PDF, 63 pages).

The Penn State Delaware Campus website on sexual harassment summarizes research on the reporting of sexual harassment as follows:

Research indicates that there are three main reasons why women do not report sexual harassment.

Reason One
Women often believe that no one will do anything about the problem. If women are harassed in an organization and the leadership of the organization does not speak out against that harassment, does not institute procedures for reporting harassment, or does not act quickly on reports of harassment, most victims will be discouraged from acting.

Reason Two
Women are afraid they will be blamed. "Blaming the victim" has historically been a strategy in countering rape charges. Women are told they "invited" the rape or harassment by their dress or demeanor. Because women see this happen to others they have good reason to believe it will also happen to them. In the United States, the treatment of Anita Hill by the Senate Judicial Committee was a strong lesson to women--not only that they won't be believed, but also that they will be blamed.

Reason Three
Women often do not want to hurt the harasser. This reason derives partly from the traditional saying "boys will be boys," which is used as an excuse for inappropriate behavior by males. Girls are taught to keep silent and to overlook bad behavior by boys. Carol Gilligan's research indicates that women think about the possible negative consequences to all persons involved. The negative consequences to the harasser may not be inconsequential. Since many women have little choice about where they work, they find it necessary to put up with a situation that they feel they cannot change. "What can't be cured must be endured" is too often the case with victims of sexual harassment.

It is generally believed that employers can encourage greater reporting of sexual harassment by establishing and maintaining effective sexual harassment complaint mechanisms and a policy prohibiting retaliation against complainants.  As the International Labor Organization notes:

Effectively communicated and implemented policies have also been found to encourage victims of harassment to report their experience to their employers. Research demonstrates that very few victims of workplace sexual harassment take any formal action for reasons which include ignorance of the routes available to them and a lack of confidence that their organization will adequately respond to their plight. Moreover, the low rates of reporting are significant, not only to the individual directly concerned, but also to the employer, who may erroneously conclude from a lack of complaints that there are few incidences of sexual harassment in the workplace.

International Labor Organization, Sexual harassment at work: National and international responses 42 (2005).

For more information on recommended sexual harassment policies please see the section on Employer Responsibilities.

Burden of Proof

Under most legal systems, an individual making a sexual harassment claim under civil law is required to prove that the illegal and sexually harassing behavior occurred and that it constituted sex discrimination, a violation of dignity or a health and safety hazard. The respondent (the harasser or employer), by contrast, often has no burden of proving that the behavior did not constitute discrimination, a violation of dignity or a health and safety hazard. This burden of proof imposed on the plaintiff has become a strong disincentive to bringing legal action against harassers or employers. As a result, many jurisdictions have taken action to reverse the burden of proof once a complainant of sexual harassment has brought forward proof that illegal harassing behavior occurred.

For example, in the United States, if a plaintiff is able to establish a prima facie case of quid pro quo sexual harassment, the burden of proof then shifts to the employer to articulate a legitimate non-discriminatory reason for its action. See Sparks v. Pilot Freight Carriers, Inc., 830 F. 2d 1554, 1564 (11th Cir. 1987); Jones v. Flagship Int'l, 793 F. 2d 714, 721-722 (5th Cir. 1986), cert. Denied 479 U.S. 1065 (1987). If the employer is able to provide a legitimate reason for its actions, the employee must then establish that the reasons provided by the employer are not the real reasons for the employment decision and are merely a pretext for unlawful discrimination.

The European Union has required its Member States to make a similar reversal of the burden of proof in civil sex discrimination cases (including sexual harassment cases). Bulgaria and the Czech Republic, two of the countries in the CEE/FSU region that will soon accede to the European Union, have already passed legislation complying with the 1997 European Union Directive on this subject. In 1999, the Czech Republic passed Civil Procedure Code, Section 133(a) which states that "[w]here the facts create a prima facie case of indirect or direct sexual discrimination in employment, s. 133a of this law imposes the burden of proof upon the respondent to prove that there has been no breach of the principle of equal treatment between men and women established under EU Directive 76/207/EEC as amended by Directive 2002/73/EC." In September 2003, Bulgaria passed an anti-discrimination law which provides that in discrimination proceedings, including proceedings relating to sexual harassment, "after the party contending to be a victim of discrimination establishes facts from which it may be presumed that there has been discrimination, the accused party must prove that there has been no breach of the right of equal treatment."

Macedonia’s recently passed anti-discrimination laws also place the burden of proof on the employer to show that discrimination did not occur.  Labor Relations Act, the Official Gazette of the Republic of Macedonia, No.62, July 28, 2005.

Proof of Injury

Under many civil sexual harassment laws, especially tort laws, the sexual harassment complainant is required to prove psychological or other injuries caused by the sexually harassing behavior before recovering damages from her or his harasser or employer. This requirement has served to deter many victims of sexual harassment from accessing the legal system and pursuing sexual harassment claims. Many victims of sexual harassment, like victims of sexual assault, fear that they will be judged or made to feel shame about their mental health or sexual history if they are required to undergo psychological/physical testing and related cross examination.

In response to this fear and to encourage victims to come forward with sexual harassment claims, the United States, among other countries, has determined through case law that proof of psychological or physical injuries is not necessary to recover damages from an employer under civil sexual harassment law. Rather, the U.S. courts in "hostile work environment" cases have required proof only that the harassing behavior was unwelcome and that the behavior would have affected negatively or interfered with the work environment of a reasonable person under similar circumstances. In guidance, the U.S. Equal Employment Opportunity Commission noted:

In Harris v. Forklift Sys., Inc., No. 92-1168 slip op. (Nov. 9, 1993), the Supreme Court considered whether a plaintiff was required to prove psychological injury in order to prevail on a cause of action alleging hostile environment sexual harassment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ss. 2000e et seq. A unanimous Court held that if a workplace is permeated with behavior that is severe or pervasive enough to create a discriminatorily hostile or abusive working environment, Title VII is violated regardless of whether the plaintiff suffered psychological harm. The Court's decision reaffirms Meritor Savings Bank v. Vinson, 477 U.S. 57, 40 EPD 36,159 (1986), and is consistent with existing Commission policy on hostile environment harassment.

From U.S. Equal Opportunity Employment Commission, Enforcement Guidance on Harris v. Forklift Sys., Inc. See also U.S. Equal Opportunity Employment Commission Guidance on Current Issues of Sexual Harassment (1990).