Even as harassment claims — some decades old — flood social media feeds, national news and daily conversations, data show that very few women ever bother to file workplace harassment claims.
"Not reporting harassment is what most people do," said Amanda Farahany, an Atlanta plaintiffs attorney with Barrett & Farahany. "It is still a situation that if you report harassment … the victim is going to be the one that bears the brunt of the harm from it."
Attorney Amanda Farahany, 46, poses for a portrait in an office at Barrett & Farahany, LLP in downtown Atlanta, on Wednesday, Nov. 1, 2017. Farahany, who became a lawyer in 1998, specializes in cases dealing with sexual harassment. Farahany says that in 99 percent of her cases, the plaintiff is a woman and the defendant is a man, with only two cases in her 19-year career involving a male plaintiff and female defendant. “I keep beating my head against the wall hoping the wall is going to break,” Farahany says. (CASEY SYKES, CASEY.SYKES@AJC.COM)
A study by Langer Research showed that 1 in 4 women say they have been sexually harassed at work. Yet, according to a report from a U.S. Equal Employment Opportunity Commission task force, roughly three out of four people who have experienced harassment "never talked to a supervisor, manager, or union representative about the harassing conduct." The report says women fear "disbelief of their claim, inaction on their claim, blame, or social or professional retaliation."
In fiscal year 2016, the EEOC recorded 1,684 sex discrimination charges filed in Georgia, a category that includes sexual harassment. Nationally, 7,433 charges alleging sexual harassment were resolved. Of those, the majority — 4,019 — ended with a conclusion that there was no reasonable cause to believe discrimination occurred based on the evidence, while others were closed, settled, withdrawn or otherwise resolved. About 420 of those charges were resolved in a finding of reasonable cause to believe discrimination occurred.
The definition of sexual harassment
In explaining the numbers, legal experts say federal law and Georgia courts have narrowly defined what counts as sexual harassment. Georgia, unlike some other states, does not have its own law prohibiting sexual harassment or a department that handles such complaints, leaving it to federal law, said attorney Farahany.
To qualify as sexual harassment under the law, it must be “unwelcome” conduct that is “severe or pervasive,” according to a 1986 U.S. Supreme Court opinion that established the standard. It must also “rise to that level that somehow it’s materially impacting your ability to do your job,” said Patricia Griffith, a partner at Ford Harrison, which handles discrimination and harassment cases.
“One thing that someone might perceive as harassment, unwelcome conduct of that nature, it may not rise to sexual harassment as that phrase is contemplated under federal law,” said Ted Boehm, partner with labor and employment law firm Fisher & Phillips.
In a case filed by a male employee of Dalton-based Shaw Industries, a judge noted that although the conduct of a female inventory clerk “was not severe or pervasive enough to constitute sexual harassment, it did not miss the mark by a country mile … the undisputed facts show that (the clerk) grabbed plaintiff’s crotch and rubbed her face in his lap.”
It started in Hollywood
Attorneys on both sides say they’re not surprised that women have waited so long to report incidents of sexual harassment by high-profile men.
“Frankly, I think they would still be waiting if someone had not opened the floodgates,” Griffith said.
The people who opened the floodgates were accusers of Harvey Weinstein, including actress Ashley Judd, who in an Oct. 5 New York Times article recounted that Weinstein called her to a breakfast meeting and was wearing a bathrobe and "asked if he could give her a massage or she could watch him shower."
The deluge of accusations has continued ever since, ensnaring director James Toback, Kevin Spacey, NPR news executive Michael Oreskes, NBC's Mark Halperin, film directors Brett Ratner and Oliver Stone, former President George H.W. Bush, actors Dustin Hoffman and Ben Affleck, among others.
Ogletree Deakins employment lawyer and managing shareholder Greg Hare said he noticed that “immediately some people start attacking the victim … invariably the first comments are, ‘Well, this is probably not true, because the person waited so long.’”
"That is just a naivete that doesn't reflect the reality that people bite their tongue when they see it could affect their life or career goals if they report something," Hare said.
Local employment attorneys who train and defend companies say there is great need for more training and having clear policies and procedures — including a procedure for what happens when the owner or CEO of the company is accused of sexual harassment. While Fortune 500 companies typically have such procedures in place, small and mid-sized businesses often don’t have human resource departments available to field complaints or concerns.
Atlanta resident Brittany Kilpatrick was working as an office manager for a small business that provides security guards to hotels when she says she was fired after complaining about sexual harassment by the owner of the company and others. As office manager, she said, “basically I was HR.”
Kilpatrick, represented by attorney AJ Lakraj of Barrett & Farahany, filed an EEOC complaint last month.
A very harsh reality
Another issue that has an impact on harassment complaints and workplace policies is the availability of legal counsel. While metro Atlanta has numerous law firms that specialize in employment law, other areas of Georgia have few firms that work with companies specifically about issues involving harassment and sex discrimination.
“I see more egregious things happening the further outside of Atlanta that you go,” Farahany said.
Then there are the niceties of regional culture and people not wanting to ruffle feathers.
"From a Southern perspective, you could get the 'I'm not going to cause waves, I'm going to be nice. I'm not going to say anything bad about anybody. I'm going to smile and not cause a controversy,' " Griffith said. "I don't know that that's necessarily confined to the South. I do know that we have those kinds of people, and probably more than our fair share."
Handling of a harassment complaint
There are typically a series of hurdles before a sexual harassment complaint reaches the courtroom.
It starts at the company, with a complaint to human resources or a manager. Best practices for the company are to begin an investigation, interview the alleged harasser and any witnesses, to gather any evidence such as emails, and to interview the accuser.
“One of the difficult things oftentimes about sexual harassment allegations is it’s a he-said, she-said scenario,” Boehm said.
Simply having an adequate complaint procedure and process in place to respond to allegations is something the company can use in its defense if it faces a sexual harassment lawsuit.
It can also be challenging for managers to handle allegations against their colleagues.
"Really what it requires a good manager to do is suspend your disbelief," Hare said. "What happens in the business world very often is, out of either loyalty or respect or position, very often a person receiving a complaint of misconduct instantly says, 'Well, that's not true. You're making that up.'
“We’ve taught corporate America that no matter how scandalous it seems, no matter how ill-conceived it seems, no matter how opportunistic it seems, say, ‘Thank you for bringing that to our attention … Please share additional information with us so we can investigate the claim,’ ” Hare said.
Even if sexual harassment is found, the remedy may not be that the harasser is fired or reassigned. It could just be a warning and notification that the behavior must stop, with the accuser continuing to work for the person she filed the complaint against.
Employees who aren’t satisfied with the remedy may file an EEOC complaint, which can take more than a year to resolve.
“A lot of people settle their cases and there’s confidentiality provisions where you can’t talk about these cases,” Lakraj said. “So there’s no way for someone to find out this is happening. It’s sad because then a lot of the facts and details about all of this stuff happening is being hidden.”
While high-profile stories of sexual harassment allegations and lawsuits have surfaced this year in the realms of entertainment, film, media and politics, the restaurant industry experienced its own #metoo moment in late October when The Times-Picayune published an investigative story detailing sexual harassment allegations from 25 current and former employees of the Besh Restaurant Group, including some pointed toward the group’s founder, New Orleans chef and restaurateur John Besh.
Within days of the story’s publication, Besh stepped down from operations with the organization. Food & Wine magazine followed with a story on industry leader reactions.
“The industry is full of easily victimized people,” Atlanta chef Hugh Acheson told the magazine, “and thus we have to protect them.”
It also led Acheson to assess the sexual harassment policy at his four dining concepts: Empire State South and two Spiller Park coffee shops in Atlanta as well as Five & Ten and The National in Athens. Acheson’s restaurants employ approximately 160 people.
“I’m still thinking it through,” he said this week in a phone interview with The Atlanta Journal-Constitution, regarding the policy he’s had in place since opening Empire State South about seven years ago. “The actual language is pretty concise, covering everything.”
This isn’t the first time Acheson has spoken out regarding sexual harassment. Two years ago, Acheson, along with other chefs and food writers, participated in a hastily organized conference in Toronto called “Kitchen Bitches: Smashing the Patriarchy One Plate at a Time.
“It all came about because of an absolutely appalling incident with a pastry chef in a restaurant in Toronto who was really harassed,” he recounted. “We discussed the idea of what the patriarchy is within the industry. It was good.”
Karen Bremer, CEO of the Georgia Restaurant Association, noted a similarity between the restaurant industry and the medical profession. “Everything from long hours, working holidays, weekend, late nights — I think employees sometimes develop a camaraderie that may step slightly over the boundaries, but that’s where it takes management to draw a line somewhere in the sand.”
For Acheson, that means hiring smartly and being professional.
“Be aware of situations going on with the place of employment,” he said. “And from the top down, preach goodness and humanity.”
Wright, the DeKalb employee, said she had dealt with inappropriate comments from pastors and teachers when she was younger, “and I just got tired of it.
"I'm looking for justice to be served, not just for me but for every woman in DeKalb County," Wright said. "I want them to come out and speak up."
AJC reporter Mark Niesse contributed to this article.