When it comes to workplace misconduct, plenty goes unreported

  • Statistics on sexual harassment lawsuits. Good

Monitor staff
Sunday, December 10, 2017

Despite a national “#MeToo” movement surrounding sexual harassment, New Hampshire hasn’t experienced a flood of new victims formally reporting sexual misconduct in the workplace.

That’s what Heather Burns and Lauren Irwin, attorneys with Upton & Hatfield, a Concord firm that represents victims of sexual harassment, said this week. So did Roxanne Juliano, the assistant director at New Hampshire’s Human Rights Commission.

“The phone’s been ringing – from reporters,” Juliano said.

Juliano, who’s been at the agency for over three decades, has noticed a pattern – when the economy’s bad, people report less. That suggests that financial precarity plays a role in how empowered people feel to speak out.

“Are you going to quit your job if you can’t get another job?” Juliano said.

Burns, of Upton & Hatfield, said in her experience, juries give women complaining of harassment a fair hearing, but many complaints never make it that far. Many women choose to endure a toxic environment rather than complain in the workplace.

If women have been sexually harassed by co-workers – not superiors – complainants must show that their bosses knew about the behavior and didn’t intervene appropriately in order to file a claim. But it can be hard to get women to complain to human resources – because retaliation, though illegal, does happen.

“When we talk to potential clients, we can’t tell them – don’t worry, they can’t fire you once you’ve reported sexual harassment. We can’t say that. We can tell them the law won’t allow it, but we can’t tell them that it won’t actually happen,” Burns said.

And the litigation process itself, Burns said, is a lengthy gamble – and intrusive.

“It often means turning over their medical records, their prior employment history and things like that. It’s not something you would want to do, unless you had something really bad happen to you,” she said.

Whether in court or at the human rights commission, complainants also face other bureaucratic obstacles. Employers have to have at least six employees in order to fall under the state’s sexual harassment statute (for federal claims, it’s 15 employees.) And plaintiffs have a limited time – 180 days – to file a charge.

Most of the time, employers are large enough to bring a claim against, but not always.

“Every so often, we’ll get a call from an employee who works for an employer that’s really, really tiny,” Burns said.

Still, if an assault occurred, there’s no minimum to bring a criminal case. And if the worker is retaliated against or fired, he or she can bring a wrongful termination suit, no matter the size of the firm.

Meanwhile, people who rely on the Human Rights Commission to resolve their case can face a long wait.

“That’s really slowed things down. And it’s not their fault – it’s funding,” Irwin said.

Juliano said the agency, which currently has 370 pending complaints, once had six full-time people dedicated to investigating cases. After a round of post-recession legislative cuts, they’re down to four full-time and one part-time investigator.

By statute, the Commission is supposed to close cases within 24 months. She concedes that doesn’t always happen – in fact, the agency’s oldest open case is about three years old.

“That’s our biggest problem – we’re under resourced for staff,” she said.

(Lola Duffort can be reached at 369-3321 or lduffort@cmonitor.com.)